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THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


FROM  THE  LIBRARY  OF 
FRANK  J.  KLINGBERG 


LEADING  AMERICAN  TREATIES 


THE  MACMILLAN  COMPANY 

NEW  YORK  •   BOSTON  •   CHICAGO   •  DALLAS 
ATLANTA   •   SAN  FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON   •  BOMBAY   •  CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


LEADING  AMERICAN 
TREATIES 


BY 
CHARLES  E.  HILL,  PH.D. 

PROFESSOR  OF  POLITICAL  SCIENCE 
IN  THE  GEORGE  WASHINGTON  UNIVERSITY 


•NVttt 
THE  MACMILLAN  COMPANY 

1922 

All  rights  reserved 


COPYRIGHT,  1922, 
BY  THE  MACMILLAN  COMPANY 


Set  up  and  electrotyped.    Published  January,  1922. 


Printed  in  the  United  States  of  America 


College 
Library 

3X 
'(. 

55 


TO    THE   MEMORY 

OF 

JAMES   B.  ANGELL 
CITIZEN,    GENTLEMAN,    TEACHER 


O r+ 

.  OUJL 


CONTENTS 

CHAPTER  PAGE 

I.  THE  TREATIES  WITH  FRANCE,  1778 i 

II.  THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783 22 

III.  JAY'S  TREATY,  1794 45 

IV.  THE  CONVENTION  OF  PEACE,  COMMERCE,  AND  NAVIGATION  WITH 

FRANCE,  1800 60 

V.  THE  LOUISIANA  PURCHASE,  1803 76 

VI.  THE  TREATY  OF  GHENT,  1814 103 

VII.  THE  CONVENTION  OF  1818  WITH  GREAT  BRITAIN 136 

VIII.  THE  FLORIDA  PURCHASE,  1819 151 

IX.  THE  WEBSTER-ASHBURTON  TREATY,  1842 175 

X.  THE  TREATY  OF  GUADALUPE  HIDALGO,  1848 194 

XI.  THE  PERRY  AND  HARRIS  TREATIES  WITH  JAPAN,  1854  AND  1858.. .  225 

XII.  THE  ALASKA  PURCHASE,  1867 250 

XIII.  THE  TREATY  OF  WASHINGTON,  1871 276 

XIV.  THE  TREATY  OF  PARIS  WITH  SPAIN,  1898 314 

XV.  THE  PANAMA  CANAL  TREATIES 347 

INDEX 389 


FOREWORD 

This  book  is  the  result  of  a  course  taken  several  years  ago  with 
President  Angell  at  the  University  of  Michigan  and  of  my 
teaching  in  the  George  Washington  University.  The  purpose  is 
to  give  the  historical  setting  and  the  chief  provisions  of  fifteen 
of  the  leading  American  treaties. 

C.  E.  H. 
Takoma  Park,  D.  C. 

September  27,  1921. 


LEADING    AMERICAN    TREATIES 

CHAPTER  I 


"Men  are  very  apt  to  run  into  extremes.  Hatred  of  England  may  carry 
some  into  an  excess  of  confidence  in  France,  especially  when  motives  of 
gratitude  are  thrown  into  the  scale.  Men  of  this  description  would  be 
unwilling  to  suppose  France  capable  of  acting  so  ungenerous  a  part.  I  am 
heartily  disposed  to  entertain  the  most  favorable  sentiments  of  our  new  ally 
and  to  cherish  them  in  others  to  a  reasonable  degree.  But  it  is  a  maxim 
founded  on  the  universal  experience  of  mankind  that  no  nation  is  to  be 
trusted  further  than  it  is  bound  by  its  own  interest;  and  no  prudent  states- 
man or  politician  will  venture  to  depart  from  it." — GEORGE  WASHINGTON. 

Could  the  Americans  have  achieved  their  independence 
single-handed?  Fortunately,  Great  Britain  had  aroused  the 
jealousy  and  the  opposition  of  the  three  great  powers  of  western 
Europe:  France,  Spain,  and  the  Netherlands.  France  came  to 
the  aid  of  the  Americans  directly  and  the  other  two  indirectly. 
All  three  assisted,  however,  not  so  much  because  of  sympathy 
for  the  rebels  in  the  English  colonies  as  because  of  their  united 
hatred  of  England. 

The  English  had  long  been  winning  competitors  with  the 
Dutch  for  the  Baltic  and  the  East  India  trade.  In  1651  the 
British  navigation  act  declared  that  foreign  vessels  could  bring 
to  England  only  such  goods  as  were  produced  in  their  own 
country.  The  enforcement  of  this  act  caused  two  wars  with  the 
Dutch  resulting  in  victory  for  the  English.  The  Dutch  had  to 
give  up  their  promising  colony  of  New  Amsterdam  and  their 
merchant  marine  had  to  assume  a  definitely  second  rank. 
During  the  Seven  Years'  War  England  had  extended  the  con- 
traband list  greatly  and  had  refused  to  recognize  the  principle 
that  free  ships  make  free  goods  as  provided  hi  the  treaty  of 
December  i,  1674. 

England  had  repeatedly  humbled  the  proud  position  of 


2  LEADING  AMERICAN  TREATIES 

Spain  and  had  made  indentations  upon  the  Spanish  colonial 
domain,  for  example  Florida  in  1763.  The  rock  of  Gibraltar 
had  passed  to  England,  and  it  was  more  than  an  emblem  of 
Spain's  waning  sea  power.  Then  too,  Spain  had  an  ambition 
to  acquire  Portugal,  which  Great  Britain  had  often  defended. 
Indeed,  the  British  loaned  money  to  Portugal  as  freely  as  they 
drank  the  Portuguese  wines. 

By  the  peace  of  Paris,  1763,  Great  Britain  took  from  France 
virtually  all  of  her  possessions  in  India,  all  of  Canada  except  two 
small  islands  near  Newfoundland  on  which  the  French  fisher- 
men could  dry  their  codfish,  and  all  of  the  French  rights  to  the 
eastern  half  of  the  Mississippi  Valley.  The  two  contracting 
parties,  France  and  Great  Britain,  bound  themselves  solemnly 
"to  give  no  succor  or  protection,  directly  or  indirectly,"  to  the 
enemies  and  assailants  of  the  other.  And  yet  the  French  nego- 
tiator of  the  treaty,  the  Due  de  Choiseul,  when  he  heard  of  the 
Stamp  Act  Congress,  sent  the  Baron  de  Kalb  to  America  on  a 
secret  mission  to  inquire  into  the  political  tendencies  and  the 
fighting  power  of  the  colonies.  As  a  result  de  Kalb  became  better 
acquainted  with  American  military  resources  than  any  other 
general  in  the  Revolution  except  George  Washington. 

Shortly  before  the  American  Revolution  broke  out  M.  de 
Vergennes  succeeded  the  Due  de  Choiseul  in  the  management  of 
French  foreign  affairs.  A  decade  had  failed  to  make  his  con- 
victions any  more  pliable  than  those  of  his  predecessor.  "The 
humiliating  peace  of  1763,"  said  Vergennes,  "was  bought  at  the 
price  of  our  possessions,  of  our  commerce,  and  of  our  credit  in 
the  Indies;  at  the  price  of  Canada,  Louisiana,  Isle  Royale, 
Acadia,  and  Senegal."  l  At  the  end  of  the  year,  1775,  he  reported 
to  Louis  XVI.  that  England  was  "an  enemy  at  once  grasping, 
ambitious,  unjust,  and  perfidious;"  that  the  Americans  were 
at  open  war  with  their  mother  country;  that  if  the  English  wrere 
foolish  enough  to  destroy  their  power  by  their  own  force,  to 
exhaust  their  finances,  and  to  engulf  themselves  in  a  civil  war, 
why  should  France  interrupt  them?  At  the  close  of  his  report 
he  drew  three  conclusions,  "i.  As  the  power  of  England 
1  Doniol,  Participation  de  la  France,  I. :  2. 


THE  TREATIES  WITH  FRANCE,  1778  3 

diminishes,  ours  will  proportionately  increase;  2.  As  her  com- 
merce becomes  impoverished  and  irreparably  lost,  so  much  may 
be  counted  as  our  gain;  3.  It  is  highly  probable  that  coming 
events  will  enable  us  to  recover  a  part  of  the  possessions  which 
the  English  took  from  us  in  America,  as  the  fishing  grounds, 
the  Gulf  of  St.  Lawrence,  Isle  Royale,  etc.,  not  to  mention 
Canada."1 

These  quotations  reveal  the  two  great  motives  of  France  in 
assisting  the  Americans  against  their  mother  country.  One, 
revenge  not  only  for  the  humiliating  Treaty  of  Paris  but  for  the 
more  than  a  century  of  losing  rivalry  for  colonial  domain  and  sea 
power.  France  may  even  have  overvalued  the  importance  of 
America's  contributions  of  timber,  hemp,  tar,  and  sailors  for  the 
English  navy.  Two,  France  had  before  her  the  task  of  reestab- 
lishing the  diplomatic  leadership  of  the  House  of  Bourbon  in 
European  affairs,  a  leadership  which  had  been  on  the  wane 
since  the  days  of  Mazarin  and  Richelieu  and  Louis  XIV.  The 
Due  de  Choiseul's  greatest  contribution  had  been  to  arrange  the 
Family  Compact  between  France  and  Spain  in  1761  by  which 
the  two  branches  of  the  Bourbon  family  joined  in  an  offensive 
and  defensive  alliance.  It  became  Vergennes'  task  to  assist  the 
Americans  in  throwing  off  British  dominion  and  thus  start  the 
break  up  of  the  British  Empire.  Neither  he  nor  any  of  his  con- 
temporaries could  foresee  that  American  independence  would 
mean  a  reform  in  British  colonial  administration.  Nor  could  he 
believe,  although  his  astute  colleague,  Turgot,  pointed  out  to 
him,  that  French  intervention  in  America  would  bring  on  war 
with  England,  consequent  ruin  to  France  financially,  and  thus 
become  the  precursor  of  social  upheavals  within  the  French 
state  itself. 

In  the  summer  of  1775  Vergennes  sent  Bonvouloir  as  his 
secret  agent  to  America.  Bonvouloir  reported  December  28, 
1775,  that  in  spite  of  the  rigorous  winter  the  Americans  had 
made  good  preparations  for  the  campaign  in  the  spring.  They 
had  seized  several  British  vessels  laden  with  food  and  supplies. 
They  had  taken  Montreal  and  laid  siege  to  Quebec.  They  were 
1  Doniol,  Participation  de  la  France,  I. :  244. 


4  LEADING  AMERICAN  TREATIES 

well  intrenched  around  Boston  and  they  had  even  a  small  navy. 
They  were  well  commanded  and  their  spirit  was  excellent.  But 
they  lacked  three  things,  a  navy,  provisions,  and  money.  He 
advised  that  France  extend  to  the  insurgents  secret  aid  in  mili- 
tary stores  and  money,  without  seeking  any  return  beyond  the 
political  object  of  the  moment.  Franklin  had  asked  if  it  would 
be  prudent  to  send  a  plenipotentiary  to  Paris.  Bonvouloir  had 
replied  that  this  would  be  precipitous,  even  hazardous,  for 
France  could  render  greater  service  by  furnishing  secret  aid  and 
by  dexterously  tranquilizing  any  apprehensions  of  the  British 
ministry.1 

In  Paris  the  American  cause  had  found  an  able  advocate 
in  the  eccentric  and  brilliant  Caron  de  Beaumarchais.  In  rapid 
succession  he  had  been  a  watchmaker,  an  inventor,  and  a  music 
master  to  the  daughters  of  Louis  XV.  He  had  acquired  consider- 
able property  through  marriage;  and  he  possessed  some  literary 
and  dramatic  genius,  as  his  Barber  of  Seville  and  The  Marriage 
of  Figaro  testify.  In  pleading  the  American  cause  as  a  means  of 
breaking  up  the  British  Empire  and  of  enhancing  the  importance 
of  France  he  fascinated  Louis  XVI.  and  he  impressed  the  cool 
and  expert  Vergennes. 

Vergennes  let  Beaumarchais  understand  that  the  principles 
of  neutrality  would  not  permit  France  to  give  direct  aid  to 
the  Americans.  Thereupon,  Beaumarchais  organized  the  ficti- 
tious business  concern  of  Roderique  Hortalez  and  Company; 
and  through  it  Vergennes  soon  loaned  the  Americans  a  million 
livres  and  he  induced  Spain  to  lend  through  the  same  channel 
another  million.  Hortalez  and  Company  became  surprisingly 
active,  so  much  so  that  at  one  time  as  many  as  fourteen  ships 
carried  cargoes  of  arms,  munitions,  and  supplies  to  the  Ameri- 
cans. The  British  admiralty  soon  divined  the  real  character 
of  these  vessels  and  by  their  vigilance  made  it  hazardous  for 
them  to  leave  port.  The  importance  of  Beaumarchais'  service 
to  the  American  cause  in  furnishing  the  channel  for  these  sup- 
plies and  hi  bringing  about  the  active  cooperation  of  the  French 
government  can  hardly  be  overestimated.  In  his  latter  and 

iab;,  287. 


THE  TREATIES  WITH  FRANCE,  1778  5 

rather  bitter  days,  he  fully  realized  the  value  of  these  unrecom- 
pensed  services.  Said  he  in  a  letter:  "And  nevertheless,  of  all 
Frenchmen,  whoever  they  may  be,  I  am  the  one  who  has  done 
most  for  the  liberty  of  America,  the  begetter  of  our  own;  for  I 
was  the  only  person  who  dared  to  form  the  plan  and  commence 
its  execution,  in  spite  of  England,  Spain,  and  even  of  France. "  l 

Several  months  before  the  Declaration  of  Independence,  No- 
vember 29,  1775,  the  Second  Continental  Congress  appointed  a 
"Secret  Committee  on  Foreign  Correspondence."  Only  by 
March  2, 1776,  did  this  committee  commission  Silas  Deane  to  go 
to  France.  Deane  was  the  son  of  a  Connecticut  blacksmith  and 
a  graduate  of  Yale  College;  he  had  taught  school, practiced  law, 
and  had  married  a  widow  with  six  children  and  a  thriving  store. 
He  had  served  in  numerous  public  capacities,  notably  as  a  mem- 
ber of  the  Committee  of  Correspondence  of  his  colony  and  as  a 
delegate  to  the  First  and  Second  Continental  Congresses.  He 
was  a  man  of  courtly  appearance  and  good  manners.  He  knew 
little  French,  for  Beaumarchais  afterwards  commented:  "He 
must  be  the  most  silent  man  in  France,  for  I  defy  him  to  say  six 
consecutive  words  in  French."  Soldiers  of  fortune  did  take 
advantage  of  his  lack  of  experience  in  judging  Europeans  and 
thus  forced  themselves  with  commissions  in  hand,  ranging  from 
lieutenants  to  major-generals,  upon  General  Washington,  whose 
patience  was  sorely  tried  hi  rendering  their  presence  of  as  small 
evil  as  possible.  But  Deane  was  instrumental  in  securing  the 
services  of  Kosciuszko  and  Pulaski,  the  Polish  heroes;  of  Baron 
von  Steuben,  Frederick's  veteran,  of  Baron  de  Kalb,  trained 
under  Marshal  Saxe  and  at  one  time  Choiseul's  secret  agent  in 
America;  and  of  the  Marquis  de  Lafayette,  destined  to  be 
remembered  the  most  appreciatively  of  all. 

In  France,  Deane  assumed,  at  first,  the  name  of  Timothy 
Jones.  But  the  British  secret  service  soon  discovered  his  identity 
and  the  British  ambassador  demanded  his  expulsion,  a  request 
which  Vergennes  failed  to  heed.  Through  the  enthusiastic  assist- 
ance of  Beaumarchais  he  was  soon  able  to  send  clothingifor  twenty 
thousand  men,  thirty  thousand  muskets,  and  large  quantities 
1  Lomenie,  Beaumarchais  el  son  temps:  457. 


6  LEADING  AMERICAN  TREATIES 

of  cannon,  gunpowder,  shot,  and  shells.1  Even  gold  to  pay  the 
soldiers  did  he  send.  But  the  open  and  public  assistance  of  the 
French  government  he  could  not  secure,  although  he  described 
in  the  most  roseate  colors,  as  he  had  been  instructed,2  the 
brilliant  prospects  of  American  trade. 

The  Continental  Congress  concluded,  therefore,  to  replace 
Deane  as  sole  commissioner  by  a  group  of  agents,  who  were  to 
act  as  the  representatives  of  an  independent  United  States, 
and  as  such  these  agents  were  to  seek  recognition  for  their 
country  as  a  member  of  the  society  of  nations  and  to  negotiate 
a  treaty  of  commerce.  In  September,  1776,  Benjamin  Franklin, 
Thomas  Jefferson,  and  Silas  Deane  were  appointed.  Jefferson 
declined  to  serve  because  of  domestic  reasons,  so  Arthur  Lee, 
then  in  London,  was  substituted,  much  to  the  later  discomfort 
of  Franklin  and  to  the  ruin  of  Deane  and  considerably  so  of 
Beaumarchais. 

Franklin  had  passed  his  seventieth  year  and  was  both  wise 
and  famous.  His  Poor  Richard's  Almanac  had  run  through 
several  editions  in  French.  His  investigations  in  the  field  of 
natural  philosophy  had  long  before  won  for  him  a  member- 
ship hi  the  French  Academy.  And  his  inventions,  from  which  he 
derived  no  financial  benefit,  made  his  name  known  in  every 
civilized  community  throughout  the  world.  Moreover,  Franklin 
was  no  novice  hi  playing  the  diplomatic  game,  for  he  had  spent 
sixteen  years  in  England  as  the  agent  not  only  of  Pennsylvania, 
but  of  New  Jersey,  Georgia,  and  Massachusetts.  During  that 
time  he  had  learned  to  know  the  leading  Englishmen  both  in 
and  out  of  official  life  as  well  as  the  diplomats  accredited  to  the 
court  of  St.  James.  Before  he  left  on  his  mission  to  France, 
Franklin  placed  his  entire  earnings  hi  the  form  of  a  liberty  loan, 
about  £3,000,  at  the  disposal  of  the  Continental  Congress, 
knowing  fully  that  if  his  cause  failed  his  savings  could  never  be 
recovered. 

Arthur  Lee  belonged  to  the  famous  Virginia  family.  He 
was  the  youngest  brother  of  Richard  Henry  Lee,  a  leader  in 

1  Wharton,  Diplomatic  Correspondence  of  the  American  Revolution,  II. :  148. 
*Ibid.,  I.:6,  40. 


THE  TREATIES  WITH  FRANCE,  1778  7 

Congress.  Like  the  sons  of  many  wealthy  southerners  of  that 
day,  Arthur  Lee  was  educated  in  the  United  Kingdom,  first  at 
Eton,  and  afterward  at  Edinburgh.  Later  he  traveled  exten- 
sively on  the  continent.  At  home  he  turned  his  attention  to 
politics  and  decided  that  he  ought  to  study  law  at  the  Temple  in 
London,  which  he  did  1766-70.  Thereafter,  he  practiced  law 
in  London,  assisted  John  Wilkes  in  one  of  his  campaigns  for  the 
House  of  Commons,  made  the  acquaintance  of  Edmund  Burke, 
and  served  second  to  Franklin  as  the  colonial  agent  for  Mas- 
sachusetts. He  ably  defended  the  rights  of  the  colonies  in 
pamphlets  and  in  the  London  newspapers.  But  he  was  ever 
envious  of  Franklin's  position.  By  nature  Lee  was  exacting  and 
suspicious,  and  consequently  he  detected  quickly  the  faults  in 
his  colleagues,  and  imagined  evil  where  none  existed.  It  can  be 
said  of  him,  however,  that  he  never  covered  his  animosities 
with  a  pretense  of  friendship. 

In  the  letter  of  credence,  dated  September  30,  1776,  the 
three  were  given  "full  power  to  communicate,  treat,  agree  and 
conclude  with  his  most  Christian  Majesty,  the  King  of  France, 
or  with  such  person  or  persons,  as  shall  by  him  be  for  that  pur- 
pose authorized,  of  and  upon  a  true  and  sincere  friendship, 
and  a  firm,  inviolable,  and  universal  peace  for  the  defence, 
protection,  and  safety  of  the  navigation  and  mutual  commerce 
of  the  subjects  of  His  Most  Christian  Majesty,  and  the  people 
of  the  United  States,  and  to  do  all  other  things  which  may 
conduce  to  those  desirable  ends. "  l  This  meant  a  treaty  of 
commerce,  as  was  apparent  from  a  draft  of  a  treaty  which 
Congress  had  approved.  The  same  held  true  of  the  instruc- 
tions.2 

Throughout  the  Revolution,  the  Americans  emphasized  their 
commercial  importance,  their  ship  building  resources,  and  their 
agricultural  products,  notably  tobacco  and  rice.  With  this 
offer  of  commercial  advantage,  they  hoped  to  bargain  for  aid 
not  only  at  Paris,  but  in  Madrid,  Vienna,  St.  Petersburg,  Ber- 
lin, at  The  Hague,  and  even  in  Tuscany  and  Naples. 

1  Lyman,  Theodore,  Diplomacy  ofthe^  United  States,  I.:  26. 

2  Force,  American  Archives,  fifth  series,  II.:  1343,  1359. 


8  LEADING  AMERICAN  TREATIES 

In  December  of  1776,  Franklin  landed  at  Nantes.  Lord 
Rockingham  declared  that  his  arrival  more  than  counterbal- 
anced the  British  victory  on  Long  Island  and  the  capture  of 
New  York  City.  Lord  Stormont,  the  British  ambassador  in 
Paris,  wrote  to  Vergennes  that  he  would  leave  if  the  "chief  of 
the  American  rebels"  should  be  permitted  to  come  to  the  city. 
Vergennes  replied  that  he  had  sent  word  by  a  courier  to  Frank- 
lin not  to  come;  but  that  if  the  message  should  miscarry  and 
Franklin  should  come  to  Paris,  it  would  be  a  violation  of  the 
principles  of  hospitality  to  expel  him.  The  message  did  mis- 
carry. Franklin  came  to  Paris.  And  the  French  government 
assigned  to  him  the  commodious  house  and  the  garden  of  M. 
Ray  de  Chaumont  in  Passy,  then  a  half  mile  from  Paris.  There 
he  lived,  though  his  colleagues  knew  it  not,  rent  free.1  He  was 
probably  the  only  American  diplomatic  representative  ever  sent 
to  Europe  who  did  not  have  to  hunt  his  own  quarters  and  pay 
for  them. 

In  a  few  days  Franklin  and  his  two  colleagues  were  granted 
a  private  audience  with  Vergennes;  a  private  audience  because 
France  was  not  yet  ready  to  recognize  American  independence. 
They  laid  before  Vergennes  their  letter  of  credence,  the  draft  of 
a  proposed  treaty  of  commerce,  and  a  request  for  eight  war 
vessels  to  convoy  the  well  laden  ships  of  Hortalez  and  Company.2 

Vergennes  replied  that  he  could  not  furnish  the  convoy,  for 
such  action  would  mean  that  France  openly  espoused  the  cause 
of  the  Americans  and  would  undoubtedly  mean  war  with  Great 
Britain.  So  Hortalez  and  Company  was  left  to  be  slowly 
strangled  by  the  British  navy.  But  Vergennes  did  offer  a  secret 
loan  to  be  repaid  without  interest;  this  offer  Franklin  gladly 
accepted.  The  draft  of  the  treaty  of  commerce  Vergennes 
promised  to  take  under  advisement.3  There  was  small  hope  of 
negotiating  the  treaty  quickly,  for  such  negotiation  implied 
the  recognition  of  the  independence  of  the  United  States.  Fur- 

1  John  Adams  later  wrote  about  Franklin  in  this  house:  "At  what  rent  I 
never  could  discover;  but,  from  the  magnificence  of  the  place,  it  was  univer- 
sally suspected  to  be  enormously  high. " 

2  Wharton,  Diplomatic  Correspondence,  I.:  184. 

3  Ibid.,  I.  .-198. 


THE  TREATIES  WITH  FRANCE,  1778  9 

thermore,  the  only  advantage  the  Americans  offered  to  France 
in  this  draft  was  free  trade  with  their  country  which  lay  beyond 
three  thousand  miles  of  ocean  with  the  greatest  maritime  power 
for  an  enemy.  The  military  situation  warranted  only  dark 
forebodings.  The  British  had  taken  New  York  City;  they 
were  going  to  take  Philadelphia;  and  the  plans  were  well  laid 
for  Burgoyne  to  start  south  from  Canada  by  way  of  Lake 
Champlain  and  the  Hudson,  thus  cutting  off  New  England,  and 
making  ready  to  crush  the  Americans  by  piecemeal. 

In  a  very  real  sense,  Franklin  made  his  house  in  Passy  one  of 
the  centers  of  the  American  Revolution.  The  tales  of  the  British 
ambassador  that  the  Americans  were  in  the  severest  straits  and 
about  to  yield,  Franklin  dubbed  facetiously  as  "Stormonts," 
which  became  in  French  society  a  polite  word  for  a  lie.  And 
when  the  British  took  Philadelphia,  Franklin  asserted  with 
confidence  that  Philadelphia  had  taken  General  Howe.  Frank- 
lin was  the  embodiment  of  the  American  cause.  He  alone  could 
secure  favorable  action  from  statesmen.  Although  the  matters 
of  finance  and  supplies  had  been  assigned  to  Deane,  it  was  with 
Franklin  that  the  financiers  wanted  to  negotiate  the  loans, 
which  from  France  alone  mounted  up  to  twenty-six  million 
francs.  Later,  when  France  had  joined  in  the  war,  Franklin 
issued  the  letters  of  marque  and  reprisal  to  privateersmen.  He 
saw  to  it  that  the  prizes  could  be  sold  in  the  ports  of  France  and 
Spain.  It  was  in  Paris  rather  than  in  America  that  the  validity 
of  the  captures  was  passed  upon.  Noteworthy  it  is  that  through- 
out, Franklin  had  no  staff  of  clerks  at  his  command,  no  devoted 
subordinates  to  collect  information,  and  no  one  to  take  charge 
of  the  mass  of  trifling  but  necessary  correspondence.  Nine- 
tenths  of  the  correspondence  addressed  to  the  American  com- 
missioners went  to  Franklin,  so  his  colleagues  admitted.  He 
had  no  one  to  save  his  energy  or  his  time  from  the  impudence  of 
soldiers  of  fortune  or  of  sham  philosophers.  His  only  assistant 
was  his  elder  grandson  who  could  "write  from  dictation  and 
copy  letters  in  good  round  hand. " 

Socially  Franklin  captured  Paris.  Entertainments  and  recep- 
tions were  considered  complete  only  when  he  graced  them  with 


10  LEADING  AMERICAN  TREATIES 

his  presence.  From  every  jeweler's  counter  the  image  of  his 
face  shone  out  from  snuff  boxes,  rings,  bracelets,  and  watches. 
He  grew  weary  of  sitting  for  portraits,  busts,  and  medals.  The 
guiding  principle  of  his  conduct  was  simple.  "It  is  my  inten- 
tion while  I  stay  here,  to  procure  what  advantages  I  can  for 
our  country  by  endeavoring  to  please  the  court. " 

Four  months  elapsed  after  Franklin's  departure  from  Philadel- 
phia before  he  received  any  despatches  from  Congress.  In 
April,  1777,  supplementary  instructions  arrived,  dated  Decem- 
ber 30,  1776.  Congress  had  become  convinced  that  in  order  to 
obtain  French  aid  more  than  mere  freedom  of  trade  must  be 
conceded.  The  American  commissioners  were  therefore  empow- 
ered to  offer,  first,  that  if  Newfoundland  and  Nova  Scotia  were 
captured  France  should  have  one-half  of  Newfoundland  and  an 
equal  share  in  the  fisheries.  Secondly,  they  were  empowered  to 
offer  provisions  to  the  value  of  $2,00x3,000  and  six  frigates  of 
twenty-four  guns  each  to  cooperate  with  French  forces  against 
the  British  West  Indies;  and  all  the  islands  thus  captured  were 
to  belong  wholly  to  France.  Thirdly,  His  Most  Christian 
Majesty  and  the  United  States  could  agree  "to  render  any  other 
assistance  which  may  be  in  their  power,  as  becomes  good  allies. " l 
Clearly,  the  United  States,  in  the  danger  of  failing  to  make  good 
its  independence,  had  overcome  its  fear  of  a  compromising 
alliance.  Clearly,  too,  these  supplementary  instructions  gave 
the  American  commissioners  additional  bargaining  power,  the 
most  significant  being  that  relating  to  an  alliance. 

Why  should  France  want  to  join  the  Americans  openly  against 
Great  Britain?  According  to  Vergennes  the  primary  question 
was  whether  France  and  Spain  could  afford  to  see  the  colonies 
return  either  directly  or  indirectly  to  British  control.  If  the 
colonies  did  return  Britain  would  again  be  the  mistress  of  North 
America.  Britain's  place  as  a  world  power  would  be  preeminent, 
and  she  could  threaten  the  position  of  the  Bourbons  whether  it 
be  in  Europe,  in  South  America,  hi  the  West  Indies,  or  in  any 
corner  of  the  globe.  It  was  infinitely  cheaper  for  France  to 
continue  with  secret  loans  and  subventions  of  war  material  for 
1  Secret  Journals  of  Congress,  II. :  39-40. 


THE  TREATIES  WITH  FRANCE,  1778  II 

the  Americans  than  to  carry  on  open  war  with  England.  But 
Vergennes'  estimate  of  the  situation  was  that  the  Americans  and 
the  English  would  make  mutual  concessions,  and  thereupon  the 
two  would  unite  in  war  against  France  and  Spain.  And  Frank- 
lin had  suggested  that  if  France  delayed  too  long  such  might  be 
the  inevitable  result.1 

On  July  23,  1777,  Vergennes  submitted  to  the  King  a  memoir 
which  stated  that  the  situation  called  for  an  offensive  and 
defensive  alliance  between  the  Bourbons  and  the  Americans 
in  which  all  parties  should  bind  themselves  not  to  abandon 
the  war  without  the  consent  of  the  others.  Louis  XVI.  ap- 
proved the  memoir  2  the  same  day,  and  shortly  it  was  on  its  way 
to  be  presented  at  the  court  of  Madrid,  where  it  encountered  the 
scrutiny  of  Florida  Blanca. 

Blanca  recognized  that  Spain  had  larger  colonial  holdings 
in  the  Americas  than  had  France  and  he  admitted  that  British 
sea-power  was  a  menace;  but  he  could  not  believe  that  the 
independence  of  the  Americans  would  remove  the  danger;  in- 
deed, with  almost  prophetic  vision,  he  pointed  out  that  the 
danger  to  the  Spanish  colonies  would  be  increased.  Blanca 
felt  satisfied  with  the  policy  of  letting  the  English  and  the 
Americans  destroy  each  other;  and  with  that  end  in  view,  he 
was  willing  to  lend  the  Americans  money  on  "  the  express  con- 
dition of  an  inviolable  secrecy. "  3 

On  November  30,  1777,  the  news  reached  France  that  the 
Americans  had  won  a  victory  over  Burgoyne  at  Saratoga.  Ver- 
gennes quickly  interpreted  the  victory  as  of  decisive  importance, 
but  he  had  the  task  of  securing  the  approval  of  the  Bourbons 
both  in  Paris  and  Madrid  before  he  could  act. 

The  American  commissioners  sent  him  a  memoir  on  December 
8,  in  which  they  reviewed  the  various  proposals  they  had  made 
to  him  and  to  which  he  had  given  no  definite  reply,  and  they 
asked  him  to  set  a  day  for  an  audience.  Vergennes  met  them 
on  December  12.  He  answered  all  questions  with  the  reservation 

1  See  Corwin,  French  Policy  and  the  American  Alliance,  Chapters  5  and  6; 
also  Van  Tyne  in  American  Hist.  Rev.,  21 :  528-41. 
2Doniol,  II.:  460-69. 
3Ibid.,II.:69s. 


12  LEADING  AMERICAN  TREATIES 

that  the  consent  of  Spain  was  necessary.  The  Americans  pre- 
sented a  statement  that  it  would  be  of  importance  to  Congress 
to  know  explicitly  what  might  be  expected  from  France  and 
Spain;  otherwise  Congress  might  be  obliged  to  consider  over- 
tures from  Great  Britain.  Vergennes  promised  to  give  it  consid- 
eration. And  in  a  few  days,  one  of  the  secretaries,  Gerard,  went 
to  Passy  by  order  of  the  King  to  say  that  His  Majesty  had  de- 
cided to  acknowledge  the  independence  of  the  United  States 
and  to  make  a  treaty  of  amity  and  commerce.  The  terms  of 
the  treaty  would  be  such  as  France  would  make  with  a  state 
long  established  and  in  the  fullness  of  power.  Gerard  intimated 
that  in  consequence  France  might  soon  be  engaged  in  war  with 
England;  that  the  King  would  expect  no  compensation  from  the 
Americans  on  that  account;  nor  would  he  pretend  that  he  acted 
wholly  out  of  good  will  to  the  American  cause,  for  "it  was 
manifestly  the  interest  of  France  that  the  power  of  England 
should  be  diminished."  Gerard  said  that  the  King  would  not 
insist  that  the  Americans  should  bind  themselves  not  to  make  a 
separate  peace;  the  only  condition  that  he  would  require  was 
that  the  United  States  should  never  give  up  its  independence. 
Just  as  soon  as  the  courier  returned  from  Spain  the  negotiations 
would  begin.1  No  treaty  of  alliance  was  mentioned. 

The  adroit  thrust  of  Franklin  had  gone  home.  Vergennes 
feared  above  all  the  reconciliation  of  the  Americans  with  the 
English.  He  promised  an  additional  three  million  livres  and 
also  convoys  for  the  supply  ships.  England  and  France  were 
preparing  to  recall  their  ambassadors.  Stocks  fell  in  both 
London  and  Paris.  War  was  imminent. 

The  courier  from  Madrid  failed  to  arrive  until  the  last  day 
of  the  year;  and  the  word  that  he  carried  indicated  that  Spain 
would  not  join.  Vergennes  had  to  secure  action  from  France 
alone.  On  January  7,  1778,  the  royal  council  convened  at 
Versailles  and  declared  unanimously  for  a  treaty  of  commerce 
with  the  United  States  and  a  treaty  of  alliance  as  well.  This 
is  the  first  definite  mention  of  a  treaty  of  alliance  which  the 
correspondence  shows.  The  royal  council  indicated  that  this 
1  Wharton,  Diplomatic  Correspondence,  I.:  259. 


THE  TREATIES  WITH  FRANCE,  1778  13 

treaty  should  embody  five  provisions.  First,  it  should  become 
operative  on  the  outbreak  of  war  between  France  and  England. 
Second,  it  should  secure  the  absolute  independence  of  the  United 
States.  Third,  the  two  powers  should  reciprocally  guarantee 
their  possessions  in  North  America  and  the  West  Indies.  Fourth, 
neither  party  would  sign  a  treaty  of  peace  without  the  consent 
of  the  other.  And  fifth,  Spain  should  be  given  the  privilege  of 
joining  later.1 

Thereupon,  Gerard  made  another  visit  to  Passy.  He  pledged 
the  American  commissioners  to  secrecy.  Then  he  asked  them 
upon  what  terms  they  would  agree  to  reject  all  propositions 
from  the  English  which  failed  to  concede  complete  independence 
hi  matters  of  trade  and  government.  The  Americans  replied 
that  a  treaty  of  commerce  and  alliance  with  France  would  be 
sufficient.  Gerard  announced  that  the  King  was  agreeable  to 
such  an  arrangement,  provided  it  took  the  form  of  two  treaties, 
a  commercial  treaty  and  a  treaty  of  alliance.  But  Gerard 
indicated  that  he  could  speak  for  France  alone;  with  Spain  the 
Americans  would  have  to  reach  a  separate  agreement,  which 
was  a  disappointment  to  Franklin.  A  few  days  later  the  Ameri- 
can commissioners  through  Deane  handed  Gerard  a  memoir 
showing  what  they  would  ask  in  order  to  give  up  the  privilege  of 
considering  British  proposals  to  return  within  the  empire.  They 
asked  for  "an  immediate  engagement  on  the  part  of  France  and 
Spain  or  either  of  them  to  guarantee  the  present  possessions  of 
the  Congress  in  America,  with  such  others  as  they  may  acquire 
on  the  Continent  during  the  War,  and  either  to  enter  into  a 
War  against  England  or  furnish  the  Congress  with  the  Money  " 
until  "all  the  English  now  possess  on  the  Continent  shall  be 
conquered"  and  the  English  fisheries  be  secured  "to  the  United 
States  and  their  allies. "  2 

On  January  18,  1778,  Gerard,  who  had  been  appointed  the 
negotiator  for  Louis  XVI.,  submitted  to  Franklin,  Lee,  and 
Deane  tentative  drafts  of  the  two  treaties.  Two  weeks  were 
spent  in  agreeing  on  the  details.  One  of  the  most  troublesome 

1  Doniol,  II.:  729. 

2  The  Deane  Papers,  II.:  313. 


14  LEADING  AMERICAN  TREATIES 

discussions  related  to  a  proposal  by  Gerard  that  France  would 
agree  to  impose  no  export  duty  on  molasses  purchased  by  Ameri- 
cans in  the  French  West  Indies  in  return  for  which  the  United 
States  should  agree  to  place  no  export  duty  upon  any  American 
commodity  purchased  by  Frenchmen.  At  first  Arthur  Lee 
approved  this  project,  but  later  he  changed  his  mind,  with  the 
result  that  Franklin  and  Deane  yielded  to  his  contention.  And 
Gerard  had  to  secure  the  promise  of  Vergennes  that  after  the 
treaty  should  be  signed,  the  two  articles  concerned  would  be 
mutually  rescinded,  which  they  were.1  The  treaties  were  signed 
February  6,  1778. 

Although  the  two  treaties  were  signed  coordinately,  the 
treaty  of  commerce  was  considered  as  standing  first.  It  was 
the  treaty  that  the  American  commissioners  had  been  instructed 
specifically  to  secure. 

Article  II  granted  mutually  most  favored  nation  treatment  "in 
respect  of  commerce  and  navigation"  .  .  .  "freely,  if  the  con- 
cession was  freely  made,  or  on  allowing  the  same  compensation, 
if  the  concession  was  conditional."  This  clause  furnishes  the 
keynote  to  the  differences  which  the  United  States  has  had  with 
other  powers  concerning  the  interpretation  of  the  most  favored 
nation  clause.  Various  countries  have  at  different  tunes  claimed 
that  reciprocity  treaties  were  not  limited  to  the  contracting 
parties,  but  by  operation  of  this  clause  the  privileges  conceded  by 
such  a  treaty  became  immediately  extended  to  the  nationals  of 
states  on  the  most  favored  nation  basis.  The  United  States  has 
consistently  withstood  such  interpretation  by  showing  that  "if 
the  concession  was  conditional "  the  same  compensation  would 
have  to  be  allowed.  Moreover,  the  United  States  has  always 
reserved  the  right  to  pass  upon  the  question  whether  the  com- 
pensation offered  was  the  same.2  Articles  III,  IV,  and  V, 
delimited  and  made  specific  the  most  favored  nation  clause. 

Article  VI  provided  for  the  protection  by  France  in  her  waters 
and  ports  of  American  vessels  and  their  cargoes  and  also  for  a 

1  Wharton,  Diplomatic  Correspondence  of  the  American  Revolution,  II.:  477, 
481. 

2  See  report  by  U.  S.  Tariff  Commission,  Reciprocity  and  Commercial 
Treaties:  417  ff.  (Washington,  1919). 


THE  TREATIES  WITH  FRANCE,  1778  15 

convoy  by  French  ships  of  war  of  American  vessels  on  the  high 
seas.  This  provision  was  of  importance  because  the  Americans 
had  almost  no  navy  with  which  to  protect  their  merchantmen. 
By  Article  VII  the  United  States  promised  to  furnish  similar 
protection  for  the  vessels  and  cargoes  of  French  subjects,  and  to 
"use  all  their  endeavours  to  recover  and  cause  to  be  restored  the 
said  vessels  and  effects  that  shall  have  been  taken  within  the 
jurisdiction  of  the  said  United  States,  or  any  of  them. "  This 
clause  has  become  unnecessary  in  present-day  treaties,  for  the 
principle  contained  therein  has  by  international  law  become  a 
part  of  the  neutrality  obligation  of  a  state. 

By  Article  VIII  Louis  XVI.  agreed  to  use  his  good  offices 
with  the  Barbary  states  to  provide  for  the  safety  of  American 
merchantmen.  Indeed,  it  was  estimated  before  the  Revolution 
that  one-sixth  of  the  wheat,  one-fourth  of  the  dried  and  pickled 
fish,  and  a  large  amount  of  the  rice  exported  from  the  United 
States,  found  their  best  market  in  the  Mediterranean  ports. 
But  the  good  offices  of  Louis  XVI.  turned  out  to  be  of  no  value. 

By  Article  IX  Frenchmen  and  Americans  could  not  fish  within 
the  territorial  waters  of  the  other.  To-day  it  is  unnecessary  to 
make  such  a  statement  in  a  treaty;  in  1778  the  rights  of  fisher- 
men were  not  so  clear.  Article  X  reserved  to  the  French  their 
fishing  rights  off  Newfoundland  as  specified  in  the  Treaty  of 
Utrecht,  1713. 

Article  XI  abolished  between  the  United  States  and  France 
the  droll  d'aubaine  and  the  droit  detraction.  This  provision  is 
found  in  the  earliest  treaties  between  the  Hanseatic  League  and 
the  princes  of  that  time;  and  it  was  for  the  purpose  of  protecting 
the  Hanse  merchants  residing  in  foreign  lands  from  paying  a 
heavy  tax  on  their  property  when  they  removed  therefrom 
(droit  detraction)  or  from  forfeiting  to  the  local  sovereign  either 
part  or  all  of  their  property  when  they  died  within  his  juris- 
diction (droit  d'aubaine).  This  practice  of  the  princes  has  fallen 
into  disuse  and  the  exemption  has  crystallized  into  a  principle  of 
international  law  and  is,  therefore,  omitted  from  present-day 
treaties. 

Articles  XII,  XIII,  XIV,  XV,  XXVII,  and  XXVIII  pro- 


16  LEADING  AMERICAN  TREATIES 

vided  for  visit  and  search  when  either  party  should  be  at  war; 
and  the  principle  was  laid  down  that  enemy  ships  made  enemy 
goods  two  months  after  war  had  begun.  Article  XVI  pro- 
vided for  the  mutual  restoration  of  goods  and  merchandise 
rescued  from  pirates.  Article  XVII  permitted  the  ships  of  war 
and  privateers  of  either  party  to  take  prizes  into  the  ports  of  the 
other;  but  this  privilege  was  not  to  be  accorded  to  the  enemies 
of  either  party.  Jay  paid  no  attention  to  this  article  when  he 
made  the  treaty  with  Great  Britain,  1794,  Article  XXV. 

By  Article  XVIII  assistance  and  relief  was  to  be  given  to  the 
shipwrecked.  This  provision  is  to-day  a  relic;  but  during  the 
thirteenth  and  fourteenth  centuries,  and  even  later,  kings  would 
confiscate  the  wrecks  of  foreigners  that  had  foundered  upon 
their  shores.  Article  XIX  contained  the  provision  that  public 
and  private  ships  of  either  nationality  might  take  refuge  in  the 
ports  of  either  party  because  of  stress  of  weather  or  pursuit  by 
pirates.  Refuge  was  also  provided  for  in  case  of  pursuit  by 
enemies;  and  the  ships  were  to  have  permission  to  depart  when- 
ever and  whither  they  pleased.  This  latter  provision  allowed  the 
use  of  the  ports  of  the  other  party  as  a  military  base,  which 
modern  principles  of  neutrality  would  not  sanction. 

If  war  should  occur  between  France  and  the  United  States, 
Article  XX  allowed  six  months  after  the  declaration  of  war 
to  the  merchants  for  selling  out  and  transporting  their  goods  to 
their  home  country.  Articles  XXI  and  XXII  stated  that  no 
subjects  of  the  French  King  and  no  nationals  of  the  United 
States  could  take  out  letters  of  marque  and  reprisal  from  their 
home  government  against  the  other.  And  if  they  did  take  out 
letters  of  marque  and  reprisal  from  any  other  state  they  were  to 
forfeit  then-  rights  under  the  treaty. 

Article  XXIII  declared  that  free  ships  made  free  goods, 
except  such  goods  as  were  contraband  of  war.  This  principle 
was  a  concession  to  the  views  of  Franklin.  He  would  like  to 
have  had  neutral  goods  on  enemy's  ships  free  as  well,  but 
Article  XIV  shows  that  he  did  not  succeed. 

Article  XXIV  defined  contraband.  The  term  comprehended 
"arms,  great  guns,  bombs  with  fuses,  and  other  things  belonging 


THE  TREATIES  WITH  FRANCE,  1778  if 

to  them,  cannonball,  gunpowder,  match,  pikes,  swords,  lances, 
spears,  halberds,  mortars,  petards,  grenades,  saltpetre,  muskets, 
musket  ball,  bucklers,  helmets,  breastplates,  coats  of  mail, 
and  the  like  kinds  of  arms  proper  for  arming  soldiers,  musket 
rests,  belts,  horses  with  their  furniture,  and  all  other  warlike 
instruments  whatever. "  But  a  long  list  of  articles  which  should 
never  be  included  under  contraband  was  inserted,  such  as  wool, 
flax,  silk,  cotton,  tin,  iron,  copper,  wheat,  barley,  salted  flesh  and 
fish,  cheese,  butter,  sugar,  tar,  ropes,  sail-cloths.  All  of  which 
shows  that  the  two  powers  united  in  opposition  to  British  sea 
power. 

Article  XXV  specified  that  if  either  party  were  engaged 
in  war  the  vessels  belonging  to  the  people  of  the  other  party 
should  carry  passports,  in  accordance  with  a  form  agreed  upon, 
manifests,  and  certificates  showing  port  of  departure  and  desti- 
nation. 

Article  XXIX  provided  for  the  mutual  right  of  having 
consuls  in  the  ports  of  the  other  party,  and  their  functions  were 
to  be  described  by  a  special  agreement.  This  agreement  was 
not  reached  until  1788. 

Article  XXX  was  drafted  so  as  to  have  unilateral  effect. 
France  granted  the  Americans  one  or  more  free  ports  subject  to 
the  regulations  which  related  to  them.  These  regulations  France 
could  change  at  any  time.  Consequently  the  grant  was  worth 
only  so  much  as  France  chose  to  make  it.1 

Copies  of  the  treaty  were  drawn  both  in  the  French  and  the 
English  languages;  but  the  French  was  stated  to  be  the  official 
copy.  The  treaty  was  to  be  ratified  within  six  months.  As  a 
matter  of  fact  Congress  ratified  it  within  three  months  on  May 
4,  1778. 

The  Treaty  of  Alliance  provided  for  a  defensive  alliance,2 
which  should  become  operative  when  war  broke  out  between 
France  and  Great  Britain.  The  object  of  the  alliance  was  to 
"maintain  effectually  the  liberty,  sovereignty,  and  independ- 
ence, absolute  and  unlimited  "  of  the  United  States.  Each  party 

1  Malloy,  Treaties,  Conventions,  etc.,  I.:  468. 

2  Ibid.,  1. 1479. 


18  LEADING  AMERICAN  TREATIES 

reserved  to  itself  the  right  to  judge  of  the  manner  in  which  it 
might  cooperate  most  effectively  with  the  other.  If  the  British 
possessions  in  the  northern  parts  of  America  and  the  Bermudas 
were  captured,  they  were  to  pass  to  the  United  States;  France 
renounced  all  claim.  But  France  was  to  have  such  British  islands 
in  the  Gulf  of  Mexico  as  might  be  captured. 

Neither  party  should  conclude  a  peace  or  truce  with  Great 
Britain  without  securing  first  the  formal  consent  of  the  other. 
There  was  to  be  no  after  claim  of  compensation,  whatever 
might  be  the  result  of  the  war.  Article  X  was  intended  as 
an  invitation  to  Spain  to  join  the  alliance.  This  invitation 
was  made  more  specific  hi  a  secret  article  added  to  the 
treaty. 

By  Article  XI  the  United  States  guaranteed  "to  his  Most 
Christian  Majesty,  the  present  possessions  of  the  Crown  of 
France  in  America"  and  "His  Most  Christian  Majesty"  guaran- 
teed to  the  United  States  its  sovereignty  and  independence 
and  all  its  possessions  "from  any  of  the  dominions  now,  or 
heretofore  possessed  by  Great  Britain  in  North  America." 
When  France  appealed  to  the  United  States  for  aid,  1793, 
in  accordance  with  the  terms  of  the  treaty,  Great  Britain 
warned  the  Americans  that  any  material  aid  given  France 
would  mean  war.  Hamilton  and  Jefferson  chose  opposite  sides 
of  the  question.  Hamilton  contended  that  France  was  conduct- 
ing an  aggressive  and  not  a  defensive  war,  and  that  the  govern- 
ment with  whom  the  Treaty  of  Alliance  had  been  made  had  been 
overthrown,  consequently  the  United  States  was  not  bound. 
The  first  argument  was  valid,  although  Jefferson  did  not  so 
recognize  it;  but  the  second  argument  had  no  merit  except  to 
show  that  Hamilton  did  not  realize  that  the  treaty  had  been 
made  with  France  and  not  essentially  with  the  Bourbon  govern- 
ment. President  Washington  solved  the  difficulty  by  issuing 
the  neutrality  proclamation.1  Congress  enacted  the  principles 
of  the  proclamation  into  law  in  I794-2  Washington  justified 

1  See  copy  in  Moore,  Principles  of  American  Diplomacy:  41. 
1  The  main  features  of  the  law  of  June  5,  1794,  were: 
i.  Persons  may  not  enlist  or  accept  a  commission  on  American  soil  to 
serve  against  a  countrv  at  peace  with  the  United  States. 


THE  TREATIES  WITH  FRANCE,  1778  19 

his  action  on  the  right  of  a  state  to  preserve  its  own  existence. 
The  Americans  had  not  recovered  from  the  stress  of  the  Revolu- 
tion; and  with  a  population  only  of  about  three  million  there  was 
danger  that  the  United  States  might  lose  its  independence  if  it 
joined  France.  As  it  was  the  United  States  had  a  troublesome 
time  getting  rid  of  the  treaties  of  1778  even  after  their  abroga- 
tion by  an  act  of  Congress,  July  7,  1798. 

The  Treaty  of  Alliance  has  great  significance  in  American 
history.  The  armed  support  of  France  was  of  great  assist- 
ance. At  Yorktown  the  Americans  shared  the  honors  of 
victory  with  the  French.  Moreover,  Great  Britain  was  to  be 
attacked  in  her  plans  for  controlling  seagoing  trade  in  which  her 
colonies  were  but  one  factor.  France  hi  her  American  alliance 
made  the  United  States  a  party  in  determining  the  balance  of 
power  in  Europe,  for  thereby  she  hoped  to  weaken  England  and 
to  enhance  her  own  position.  Insignificant  in  its  beginning  the 
American  question  had  become  one  of  European  and  of  world- 
wide importance. 

Franklin,  Lee,  and  Deane  were  officially  received  by  the  King,1 
March  20,  1778. 2  Gerard,  the  French  negotiator  of  the  treaties, 
was  commissioned  minister  plenipotentiary  to  the  United  States 
and  enjoyed  the  distinction  of  being  the  first  from  any  state. 

On  February  17,  1778,  in  the  House  of  Commons,  Charles 
James  Fox  asked  Lord  North  whether  a  treaty  had  not  al- 

2.  No  belligerent  may  use  any  part  of  the  United  States  as  a  military 
base  against  a  state  at  peace  with  the  United  States. 

3.  Americans  could  not  fit  out  or  aid  in  fitting  out  vessels  that  were  to 
cruise  against  a  power  at  peace  with  the  United  States. 

4.  The  shipment  by  Americans  of  arms  and  warlike  supplies  to  a  belligerent 
was  permitted,  but  at  the  risk  of  capture  and  condemnation  as  contraband, 
i  Statutes  at  Large,  381. 

1  Journal  of  Arthur  Lee  in  R.  H.  Lee,  Life  of  Arthur  Lee,  I.:  403. 

2  On  February  13,  1778,  Captain  John  Paul  Jones  of  the  "Ranger"  off 
Quiberon  Bay,  asked  Admiral  Picquet  if  a  salute  would  be  returned.    Ad- 
miral Picquet  replied  that  he  would  return  the  salute  in  the  same  manner  as 
the  French  returned  it  to  the  Dutch  or  any  other  republic;  namely  four  guns 
less.    Jones  replied  that  the  haughty  English  returned  gun  for  gun  to  flag 
officers  of  equal  rank  and  only  two  less  for  a  captain  and  requested  an  equal 
number  for  the  honor  of  the  United  States.    On  February  14  he  decided  to 
fire  the  salute  of  thirteen  guns  and  the  French  answered  with  a  return  of 
nine.   John  Paul  Jones  Papers,  II.,  and  Letters  of  John  Paul  Jones  in  Papers 
of  Continental  Congress,  I.:  27,  31. 


20  LEADING  AMERICAN  TREATIES 

ready  been  made  ten  days  before  between  the  French  and  the 
Americans  and  whether  it  was  not  too  late  to  press  measures 
looking  toward  reconciliation  with  the  former  colonies.  Lord 
North  admitted  that  he  had  heard  rumors  of  such  an  event,  but 
the  measures  were  passed  nevertheless.  The  French  ambassador 
in  London,  the  Marquis  de  Noailles,  announced  to  the  British 
government  on  March  13,  1778,  that  France  had  made  a  treaty 
of  friendship  and  commerce  with  the  United  States.  The  Eng- 
lish and  French  ambassadors  were  thereupon  recalled;  and  the 
respective  fleets  of  the  two  powers  sailed  for  American  waters. 

Charges  made  by  Arthur  Lee  that  Silas  Deane  and  Beaumarch- 
ais  were  levying  exorbitant  profits  upon  the  goods  furnished  by 
France  bore  fruit.  Congress  recalled  Deane  and  later  Lee  as 
well.  This  left  Franklin  as  the  sole  American  minister  to  France, 
and  he  served  until  1785  when  he  was  relieved  by  Thomas 
Jefferson.  Lee  served  afterwards  as  a  delegate  to  Congress 
under  the  Articles  of  Confederation  and  as  a  member  of  the 
Virginia  Assembly,  but  the  only  diplomatic  assignment  he  again 
held  was  that  of  a  negotiator  with  the  Indians.  Deane  returned 
and  attempted  to  secure  an  appropriation  from  Congress  for  his 
services  and  for  his  expenditure  of  private  funds.  But  he  was 
unable  to  refute  Lee's  rather  baseless  charges.  He  retired  from 
the  doors  of  Congress  in  a  sullen  mood,  went  to  England,  and 
accepted  service  with  the  British  government.  Not  until  fifty- 
eight  years  after  his  death,  August  n,  1842,  did  Congress 
appropriate  $36,998  for  Deane's  heirs,  a  tardy  recognition  of 
work  that  had  great  influence  upon  American  history. 

In  1781  Deane  presented  Beaumarchais'  claims  to  Congress, 
but  that  body  would  not  act.  Six  years  later  Beaumarchais 
wrote  an  appeal  to  Congress,  which  was  referred  to  Arthur  Lee, 
who,  consistent  with  his  earlier  suspicions,  declared  that  the 
goods  furnished  Roderique  Hortalez  and  Company  were  gifts 
from  the  French  government  and  that  Beaumarchais  owed  the 
United  States  2,000,000  livres.  In  1793  Hamilton  examined  the 
claims  and  reported  that  the  United  States  owed  Beaumarchais 
2,280,000  livres  and  possible  more,  but  Congress  failed  to  act. 
Beaumarchais  died  hi  poverty.  In  1822  his  daughter  went  to 


THE  TREATIES  WITH  FRANCE,  1778  21 

Washington  and  presented  her  claims  in  person.  But  not 
until  eleven  years  later  did  Congress  appropriate  a  sum  which 
amounted  to  one-fourth  of  that  which  Hamilton  had  said 
was  Beaumarchais'  rightful  due. 

BIBLIOGRAPHY 

CHANNING,  EDWARD.— History  of  the  United  States,  Vol.  III.  1761-1789. 
New  York,  1916. 

CLARK,  GEORGE  L. — Silas  Deane.    New  York,  1913. 

CORWIN,  EDWARD  S. — French  Policy  and  the  American  Alliance  of  1778. 
Princeton,  1916. 

DEANE,  SILAS. — The  Deane  Papers,  1774-1790.  (New  York  Historical 
Society.)  5  volumes.  New  York,  1887-1890. 

DONIOL,  HENRI. — Histoire  de  la  Participation  de  la  France  a  V  fitablissement 
des  fclats-Unis  d'Amerique.  Paris,  1886-1892.  5  volumes. 

HAZARD,  BLANCE  E. — Beaumarchais  and  the  American  Revolution.  Boston, 
1910. 

Harper's  Atlas  of  American  History,  edited  by  D.  R.  Fox,  New  York,  1920. 

Journal  of  the  Continental  Congress,  23  volumes.  Edited  by  Gaillard  Hunt. 
Washington,  1904-1914. 

LEE,  ARTHUR,  Journal  in  RICHARD  HENRY  LEE,  Life  of  Arthur  Lee,  2  vol- 
umes. Boston,  1829. 

LOMENIE,  Louis  DE. — Beaumarchais  et  son  Temps.  The  essay  won  for  the 
author  membership  in  the  Academy.  Paris,  1857. 

LYMAN,  THEODORE. — The  Diplomacy  of  the  United  States.  2  volumes. 
Boston,  1828.  This  work  covers  the  period  from  1778  to  1825. 

Secret  Journals  of  Congress.    4  volumes.    Boston,  1821. 

TRESCOT,  WILLIAM  H. — The  Diplomacy  of  the  Revolution.    New  York,  1852. 

TREVELYAN,  GEORGE  OTTO. — The  American  Revolution.  Vol.  IV.  New 
York,  1912. 

VAN  TYNE,  C.  H. — The  American  Revolution.    New  York,  1905. 

WHARTON,  FRANCIS. — Diplomatic  Correspondence  of  the  American  Revolu- 
tion. 6  volumes.  Washington,  1889. 

WINSOR,  JUSTIN. — Narrative  and  Critical  History  of  America.  Vol.  VII. 
Boston,  1888. 


CHAPTER  II 
THE  TREATY  OF  INDEPENDENCE.     PARIS,  1783 

"We  hazard  nothing  in  saying  that  not  only  the  most  important  event 
of  the  past  two  hundred  years,  but  one  of  the  most  important  events  of 
all  time,  was  the  advent  of  the  United  States  into  the  family  of  nations. 
Its  profound  significance  was  not  then  unfelt,  but  in  the  nature  of  things 
its  far  reaching  effects  could  not  be  foreseen.  Even  now  as  we  survey  the 
momentous  changes  of  the  last  few  years,  we  seem  to  stand  only  on  the 
threshold  of  American  history,  as  if  its  domain  were  the  future  rather 
than  the  past." — JOHN  BASSETT  MOORE. 

The  ultimate  object  of  all  American  diplomatic  efforts  in 
Europe  was  to  secure  a  treaty  of  peace  with  England  and 
thereby  to  complete  the  recognition  of  independence.  In  the 
estimation  of  the  Continental  Congress  the  alliance  with  France 
was  a  great  step  and  the  next  one  to  be  made  was  to  obtain  the 
accession  of  Spain,  for  which  the  treaty  had  left  an  opening. 
Spain  held  a  position  of  first  rank  among  the  nations,  and  every- 
one knew  of  her  dislike  for  the  British  Empire. 

Franklin  had  early  cultivated  the  friendship  of  the  Spanish 
ambassador  in  Paris,  the  Count  d'Aranda.  But  d'Aranda  was 
rather  a  politician  in  exile  than  the  confidential  diplomatic  agent 
of  the  Escurial.  Hence,  Arthur  Lee  was  sent  to  Madrid;  but  the 
chief  minister  of  Charles  III.,  the  Marquis  de  Grimaldi,  would 
not  allow  Lee  even  to  approach  the  capital.  The  two  met  at 
Burgos;  and  with  pledges  of  monetary  aid  through  the  hands  of 
the  French,  Grimaldi  induced  Lee  to  return.1  The  Spanish 
ministry  and  the  royal  council  feared  the  influence  which  the 
action  might  have  upon  their  own  colonies  if  Spain  should  openly 
assist  the  English  rebels.  However,  Grimaldi's  attitude  was 
marked  by  impartiality  and  disinterestedness,  determined  some- 
what by  the  fact  that  he  was  born  a  Genoese.  In  1777  he  fell 
from  power  and  was  succeeded  by  an  intensely  Spanish  char- 
acter, the  Count  de  Florida  Blanca. 

1Wharton,  Diplomatic  Correspondence,   I.:  403,  408. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          23 

Florida  Blanca  revealed  considerable  chagrin  when  he  heard 
of  the  Franco-American  alliance;  he  had  hoped  that  this  treaty 
would  depend  upon  his  own  leisurely  decision.  He  conceived 
that  the  United  States  was  destined  to  become  a  greater  enemy 
to  the  Spanish  colonial  possessions  than  Great  Britain  herself; 
especially  anxious  was  he  to  keep  the  Americans  away  from 
the  Mississippi  River.1  The  role  of  mediator  between  France 
and  Great  Britain  appealed  both  to  Charles  III.  and  Blanca. 
France  accepted  their  proposal  on  the  basis  of  the  Treaty  of 
Alliance,  but  the  British  laid  down  the  impossible  requirements 
that  the  French  fleet  should  be  recalled  from  American  waters 
and  that  the  French  should  stop  giving  aid  to  the  Americans. 
Such  requirements  would  ordinarily  have  killed  any  mediation 
project,  but  not  so.  Florida  Blanca  saw  an  advantage  in  delay- 
ing Spain's  entry  into  the  war.  He  proposed  that  France  be 
willing  to  approve  the  entry  by  the  English  into  a  long  truce 
with  the  Americans,  as  Spain  had  done  with  the  Netherlands; 2 
the  purpose  was  to  make  the  Americans  feel  that  their  eventual 
independence  rested  upon  the  good  will  of  the  Bourbon  crowns. 
At  the  same  time  Florida  Blanca  asked,  if  the  mediation  should 
fail,  what  advantages  might  Spain  obtain  if  she  joined  arms  with 
France.3 

Vergennes  replied  to  the  query  about  the  long  truce  that 
France  would  approve  one  which  should  run  from  twenty  to 
fifty  years,  provided  the  English  would  treat  the  Americans  as 
independent  and  would  withdraw  all  of  their  armed  forces 
from  the  United  States.  Vergennes  consulted  Franklin, 
and  according  to  Vergennes'  statement,  Franklin  acknowl- 
edged that  independence,  whether  recognized  as  a  matter  of 
right  or  only  as  one  of  fact,  would  be  a  very  good  thing  for  the 
United  States;  that  with  the  advantages  of  peace  or  of  a  truce 
the  Americans  could  perfect  their  political  arrangements  and 
internal  order.  An  Englishman,  David  Hartley,  had  written 
a  letter  to  Franklin  in  which  he  had  broached  this  same  idea  of 

1Doniol,  II.:  748,  750,  753. 

2  Ibid.,  III.:  622. 

3  Ibid.,  III.:  619,  641,  681. 


24  LEADING  AMERICAN  TREATIES 

a  long  truce.1  To  the  second  proposition  about  the  advantages 
France  might  promise  Spain  to  secure  her  as  an  ally,  Vergennes 
replied  that  Louis  XVI.  had  so  much  confidence  in  the  virtues 
of  the  King,  his  uncle,  that  he  would  approve  in  advance  all  that 
the  King  of  Spain  might  deem  pertinent  to  Spanish  interests.2 

But  Florida  Blanca  wanted  exact  stipulations.  The  nego- 
tiations for  these  culminated  in  the  secret  convention  signed  at 
Aranjuez,  April  12,  1779.  By  Article  I  Spain  promised  that  if 
His  Britannic  Majesty  rejected  the  offer  of  Spain's  friendly 
offices,  which  had  been  made  on  April  3,  Spain  would  then  join 
France  against  Great  Britain.  The  other  leading  provisions 
were:  neither  party  would  make  peace  with  England  without  the 
other;  France  should  regain  the  right  to  fortify  Dunkirk,  lost 
by  the  Treaty  of  Utrecht;  and  she  was  to  have  Newfoundland, 
but  agreed  to  share  the  fisheries  with  Spam;  Spam  should  have 
Pensacola,  which  she  had  lost  in  1763,  and  also  Mobile  and 
Honduras;  but  the  crucial  point  was  that  neither  party  would 
make  peace  until  Gibraltar  had  become  Spanish  again.  Article 
IV  stipulated  that  Spain  would  not  recognize  the  independence 
of  the  United  States  until  Great  Britain  should  do  so.3  During 
the  negotiations  Vergennes  remarked:  "Nothing  is  to  be  had 
gratuitously  from  Spain.  We  know  that  she  desires  some 
compensation  from  the  Americans  as  well  as  from  us,  and  we 
shall  not  oppose  her."4 

France  made  at  Aranjuez  a  new  alliance  considerably  at  the 
expense  of  the  earlier  one  with  the  United  States.  France  had 
yielded  on  the  point  of  the  recognition  of  the  absolute  independ- 
ence of  the  United  States  and  had  made  a  tacit  allowance  for  a 
long  truce,  instead  of  engaging  "not  to  lay  down  their  arms 
until  the  independence  of  the  United  States  shall  have  been 
formally  or  tacitly  assured  by  the  treaty  or  treaties  that  shall 
terminate  the  war." — Article  VIII,  Treaty  of  Alliance,  1778. 
She  had  conceded  the  possible  rights  of  Spain  in  the  Newfound- 
land fisheries  without  as  much  as  consulting  the  Americans.  In 

1  Doniol,  III.:  595. 
*Ibid.,  III.:  609. 
»Ibid.,   III.:   803. 
4  Ibid.,  III.:  672. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          25 

the  American  treaty  the  French  King  had  "forever  renounced 
possession  of  any  part  of  the  continent  of  North  America" 
which  had  belonged  to  the  British.  Pensacola  and  Mobile 
were  not  mentioned;  but  he  had  no  right  to  use  these  as  a  part  of 
a  bargain  with  Spain,  so  that  Spain  might  establish  her  supremacy 
in  the  Gulf  of  Mexico.  France  would  compel  her  American  ally 
to  continue  the  fight  against  England  and  to  wait  indefinitely 
for  independence  until  Spain  could  reconquer  Gibraltar,  an 
object  wholly  foreign  to  American  interests.  The  lands  to  the 
east  of  the  Mississippi  received  no  mention,  but  it  was  under- 
stood that  France  would  support  Spanish  rights,  whatever  these 
were.  Moreover,  the  negotiations  and  the  Treaty  of  Aranjuez 
were  to  be  kept  secret,  so  that  France  might  guide  the  Ameri- 
cans all  the  more  effectively  toward  the  concealed  goal.  It 
needs  be  said  that  Vergennes  knew  nothing  of  the  American 
claims  to  the  West  and  that  he  used  his  influence  to  harmonize 
the  two  allies  of  France.1 

The  terms  proposed  to  Great  Britain  in  the  offer  of  mediation 
on  April  3  consisted  of  a  truce  of  long  duration  during  which 
Great  Britain  should  hold  all  the  territory  in  the  possession  of 
her  military  forces,  including  New  York  City  and  Rhode  Island. 
Vergennes  did  not  know  of  the  exact  content  of  the  terms  till 
after  they  had  been  sent,  and  then  he  protested  vehemently 
against  the  unwarranted  concessions  of  territory.  He  appealed 
to  the  promise  of  Spain  so  often  made  to  guard  the  honor  of  the 
crown  of  France  as  she  would  that  of  her  own  crown.2  But 
George  III.  saved  the  honor  of  the  two  Bourbon  crowns 
by  refusing  the  mediation.  Spain  declared  war  June  16, 
1779. 

The  Continental  Congress  hoped  to  secure  the  complete 
alliance  of  Spain,  and  therefore  sent  a  very  able  man,  John  Jay, 
as  minister  to  Madrid.  He  knew  nothing  of  the  Treaty  of 
Aranjuez,  and  hence  could  not  understand  the  failure  of  his 
mission.  He  was  never  officially  received,  but  he  acted  with 

1  Phillips,  P.  C.     The  West  in  the  Diplomacy  of  the  American  Revolution: 
170. 
2Doniol,  III.:  768. 


26  LEADING  AMERICAN  TREATIES 

patience,  tact,  and  dignity  throughout  the  long  informal  negotia- 
tions. Congress  went  so  far  as  to  authorize  him  to  surrender  the 
right  of  navigating  the  Mississippi  below  the  thirty  first  degree 
parallel  as  the  price  for  a  Spanish  alliance.1  Jay  wrote  in  reply: 
"The  cession  of  this  navigation  will,  in  my  opinion,  render  a 
future  war  with  Spain  unavoidable,  and  I  shall  look  upon  my 
subscribing  to  the  one  as  fixing  the  certainty  of  the  other. "  2 
Jay  acquired  in  Madrid  a  suspicion,  which,  when  he  later 
talked  it  over  with  John  Adams,  grew  into  a  conviction,  that 
France  was  holding  Spain  back. 

It  might  appear  on  the  surface  that  Spain  and  the  United 
States,  though  not  technically  allies,  were  fighting  in  a  common 
cause  against  a  common  enemy.  On  the  contrary  the  cause  had 
few  common  characteristics.  And  Spain  succeeded  by  her 
dallying  with  mediation  to  fritter  away  the  aid  which  France 
would  otherwise  have  rendered  in  1779.  In  1780  Spain  did 
place  a  small  force  in  Minorca,  another  along  the  Mississippi,  and 
she  secured  with  almost  no  opposition  footholds  in  Florida.  She 
laid  siege  to  Gibraltar,  it  is  true,  which  was  occupied  by  a  small 
number  of  British;  but  that  fact  was  of  no  assistance  to  the 
Americans.  Briefly,  the  alliance  of  France  with  Spain  may  be 
said  to  have  cost  the  American  cause  more  than  the  millions  of 
livres  Spain  secretly  advanced  through  France  and  it  constituted 
a  potential  menace. 

Another  phase  of  the  diplomatic  efforts  of  the  Continental 
Congress  centered  in  the  Netherlands.  During  the  Revolution 
American  trade  relations  were  more  intimate  with  the  Dutch 
than  with  any  other  people;  chiefly  because  of  the  favorable 
location  of  the  Dutch  colony  of  St.  Eustatius  in  the  midst  of  the 
rich  English,  Danish,  French,  and  Spanish  West  Indies.  Under 
a  treaty  with  England  free  ships  made  free  goods,  therefore 
Dutch  merchantmen  carried  safely  European  goods,  even  Eng- 
lish goods,  to  this  depot;  and  American  ships  laden  with  tobacco, 
rice,  and  indigo  would  drop  into  the  assisting  trade  winds,  land 
at  St.  Eustatius,  make  the  proper  exchange,  and  return  home. 

1  Wharton.  Diplomatic  Correspondence,  TV.:  293. 
'Ibid.,   IV.:   337. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          27 

By  this  method  Amsterdam  was  able  to  furnish  London  with 
American  products  and  Boston  with  English  products.1  But 
the  situation  exasperated  the  English.  Moreover,  John  Paul 
Jones  had  found  refuge  in  Dutch  waters  after  successful  raids 
upon  British  merchantmen. 

England  decided  to  take  high  ground  in  her  treatment  of 
neutral  carriers,  this  included  the  Prussian,  Swedish,  Danish, 
and  Dutch;  but  the  Dutch  had  more  ships  than  the  others  com- 
bined and  they  did  most  of  the  carrying  trade  for  Russia.  Eng- 
land forbade  neutral  merchantmen  to  carry  any  commodities 
belonging  to  nationals  of  France  or  Spain;  and  she  proceeded  to 
seize  and  confiscate  those  that  did. 

In  the  winter  of  1779-1780,  Spain  seized,  on  much  the  same 
pretexts  as  those  of  England,  two  Russian  ships  laden  with 
wheat  and  confiscated  their  cargoes.  War  almost  followed. 
Frederick  the  Great  persuaded  Florida  Blanca  to  offer  the 
fullest  reparation  to  Russia.  And  he  suggested  to  Count  Panin, 
completely  under  his  domination,  that  it  would  be  an  opportune 
time  for  Russia  to  proclaim  to  the  world  that  neutral  ships  and 
their  cargoes,  unless  contraband,  should  be  exempt  from  seizure, 
and  that  the  coastwise  trade  of  belligerents  should  be  open. 
Count  Panin  promptly  presented  the  plan  to  the  Empress 
Catherine,  who  felt  flattered  with  the  opportunity  to  act  as 
spokesman  for  the  neutral  nations.  On  March  10, 1780,  Cather- 
ine issued  a  proclamation,  addressed  to  the  courts  of  London, 
Versailles,  and  Madrid,  requesting  all  powers  to  join  her  in 
maintaining  the  rights  of  neutral  merchantmen.2  Denmark  and 
Sweden  were  the  first  to  respond,  and  they  with  Russia  formed 
the  nucleus  for  the  armed  neutrality.  France  and  Spain  followed. 
The  Netherlands  worried  along  until  they  decided  to  join  in  1781. 
Prussia  and  Austria  followed.  Portugal  became  a  party  in  1782, 
and  the  Two  Sicilies  in  1783.  Even  Turkey  accepted  the  prin- 
ciples. Great  Britain  alone  refused,  and  she  well  knew  that  it 
was  against  her  tactics  that  the  league  had  been  formed;  nor  did 

1  See  Jameson,  St.  Eustatius  in  the  American  Revolution,  Amer.  Hist. 
Review,  VIII.:  683. 

2  James  Brown  Scott,  The  Armed  Neutralities:  273. 


28  LEADING  AMERICAN  TREATIES 

she  accept  any  of  the  principles  until  the  Treaty  of  Paris,  1856. 
As  for  the  doctrine  of  free  ships,  free  goods,  contraband  excepted, 
the  parties  to  the  armed  neutrality  observed  it  only  at  their 
convenience.  Indeed,  Russia  was  the  first  to  violate  it  during 
her  war  with  Turkey  in  1788  by  seizing  Turkish  property  on 
Swedish  ships. 

When  the  Netherlands  joined  the  armed  neutrality,  Great 
Britain  claimed  immediately  that  the  Dutch  had  violated  the 
treaties  of  1674  and  1715.  Another  incident  did  much  to  ignite 
the  war  between  the  British  and  the  Dutch.  While  Arthur  Lee 
was  at  Paris,  a  brother,  William  Lee,  received  instructions  to 
negotiate  with  Berlin  and  Vienna.  He  went  only  as  far  as 
Frankfort;  and  on  the  way  fell  in  with  a  Dutchman,  de  Neuf- 
ville.  The  two  amused  themselves  by  drawing  up  a  draft  of  a 
treaty  between  the  United  States  and  the  Netherlands.  In  it  de 
Neufville  professed  to  act  under  instructions  from  van  Berckel, 
the  pensionary  of  Amsterdam.1  William  Lee  sent  this  draft 
home  to  Congress,  and  when  Congress  chose  its  president, 
Henry  Laurens,  to  negotiate  a  treaty  and  a  loan  at  The  Hague, 
this  unauthenticated  draft  of  a  treaty  was  enclosed  among  his 
papers.  The  British  chased  and  captured  the  ship  which  carried 
Laurens.  He  hurriedly  threw  his  papers  overboard,  but  the 
British  sailors  fished  them  up;  and  Laurens  was  placed  in  the 
Tower  of  London.  The  English  government  demanded  peremp- 
torily that  the  Netherlands  disavow  the  draft  of  the  treaty  and 
punish  van  Berckel  who  had  apparently  authorized  it.  The 
Dutch  government  did  disavow  the  treaty  of  which  it  had  up 
to  that  time  known  nothing;  but  van  Berckel  could  not  be 
punished,  for  under  Dutch  law  he  had  committed  no  crime. 
Great  Britain  declared  war.  Britain  feared  Russia  and  offered 
Minorca  to  Catherine  which  she  did  not  accept;  but  neither  did 
she  listen  to  Holland's  appeal  for  assistance  under  the  alliance 
of  the  armed  neutrality.  Catherine  consulted  Frederick  of 
Prussia,  declaring  her  willingness  to  join  him  in  a  fight  for  the 
principles  of  the  league;  but  the  Prussian  refused;  and  thereupon 
Russia  left  Holland  to  her  fate. 

1  Wharton,  Diplomatic  Correspondence,  I.:  606. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          29 

John  Adams  had  been  sent  to  Paris  with  the  express  object  of 
being  ready  to  negotiate  a  treaty  of  peace  with  Great  Britain. 
While  waiting  hi  Paris  he  made  his  presence  objectionable  to 
Vergennes,  who  requested  Franklin  to  urge  upon  Congress  that 
Adams  be  recalled.  Congress  did  administer  a  mild  rebuke  and 
soon  assigned  him  to  the  task  of  negotiating  a  treaty  with 
Holland.  Due  to  the  fact  that  each  province  had  a  share  in 
treaty  making  this  task  became  both  difficult  and  tedious.  But 
after  two  years  of  unremitting  efforts  and  the  news  of  Cornwal- 
lis'  defeat  at  Yorktown  he  accomplished  his  purpose,  October  8, 
1782. 

Although  this  treaty  was  abrogated  by  the  overthrow  of 
the  Dutch  government  by  Napoleon  in  1795,  the  mere  negotia- 
tion of  it  had  significance.  The  United  States  did  not  beg  for 
help  as  in  the  case  of  the  treaties  with  France  in  1778;  the 
United  States  through  John  Adams  negotiated  as  the  equal 
of  the  United  Provinces,  and  most  liberal  commercial  provi- 
sions were  agreed  upon.  By  this  treaty  the  Dutch  recognized 
that  the  war  had  practically  closed  at  Yorktown,  and  that 
American  independence  stood  on  its  own  merits,  separate  and 
apart  from  Dutch  interests.1 

By  the  end  of  the  year  1782  Great  Britain  found  that  she  had 
been  engaged  for  seven  years  in  war  against  her  American  col- 
onies, four  years  against  France,  two  years  against  Spain,  and 
for  almost  as  long  against  Holland.  The  armed  neutrality  of 
1780  brought  into  opposition  to  Britain  and  to  her  policies  al- 
most all  of  the  European  states.  The  Americans  had  one  ally  in 
France;  one  haughty  and  expensive  co-belligerent  in  Spain; 
and  a  friendly  co-belligerent  in  Holland.  It  had,  no  doubt, 
become  evident  to  English  statesmen  that  when  George  III. 
refused  to  receive  the  petition  of  the  First  Continental  Congress 
he  projected  American  affairs  into  European  diplomacy.  John 
Adams  aptly  said:  "It  is  obvious  that  all  the  powers  of  Europe 
will  be  continuously  manoeuvering  with  us  to  work  us  into  their 
real  or  imaginary  balances  of  power."  It  cannot  be  said  that 
Britain  was  whipped;  but  she  had  already  begun  to  make  peace. 
1Malloy,  Treaties,  etc.,  II.:  1233. 


30  LEADING  AMERICAN  TREATIES 

Several  ineffectual  steps  toward  peace  had  been  taken.  As 
early  as  1779,  the  British  premier,  Lord  North,  directed  an  old 
friend  of  Franklin,  David  Hartley,  to  open  an  informal  corre- 
spondence on  the  subject  of  peace  with  the  Americans.  Hartley 
proposed  a  long  truce  and  the  suspension  of  the  objectionable 
acts  of  Parliament  in  return  for  which  the  Americans  should 
cancel  the  treaties  with  France.  Franklin  refused.  It  meant 
the  breaking  of  faith  with  France.1 

In  the  same  year  the  Empress  Maria  Theresa  wrote  Charles 
III.  of  Spain  to  dissuade  him  from  going  to  war  with  England. 
Later  Austria  offered  to  mediate  between  France  and  England, 
and  likewise  failed.  By  1781  Joseph  II.  had  succeeded  Maria 
Theresa;  and  his  leading  minister,  Prince  Kaunitz,  made  prep- 
arations to  call  a  peace  congress  at  Vienna.  He  accepted  the 
advice  of  Vergennes  that  the  United  States  be  invited  not  to  the 
congress  but  to  send  delegates  to  Vienna  to  negotiate  peace  with 
England  at  the  same  time  that  the  European  powers  should  seek 
peace  among  themselves  within  the  formal  congress.  But  the 
basis  for  negotiations  as  insisted  upon  by  Great  Britain  was  the 
status  quo  ante  bellum  and  an  armistice.  John  Adams  voiced 
the  emphatic  refusal  of  the  United  States.2  Austria  and  Russia 
refused  also.  For  France,  Great  Britain  added  another  condition, 
that  France  should  withdraw  from  her  alliance  with  the  United 
States.  Kaunitz  laid  upon  Great  Britain,  then,  the  blame  for 
the  failure  of  his  proposed  congress. 

On  Washington's  birthday,  1782,  Conway's  motion  against 
the  further  continuance  of  the  war  passed  the  House  of  Commons. 
In  consequence  Lord  North's  ministry  resigned,  March  20,  1782. 
Lord  Rockingham  formed  the  new  ministry  with  Shelburne  as 
Home  Secretary  and  Fox  as  Foreign  Secretary,  both  of  them  old 
friends  of  Franklin.  Before  the  Revolution  the  American  col- 
onies belonged  in  the  Home  Department;  but  at  this  tune  Shel- 
burne and  Fox  were  not  clear  as  to  whose  department  the  Ameri- 
cans belonged.  Consequently,  two  commissioners  were  sent  to 
Paris.  Fox  sent  Grenville  to  confer  with  Vergennes  and  "with 

1Wharton,  Diplomatic  Correspondence,  II.:  24.  26. 
'Ibid.,  III.:  338. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          31 

any  power  or  state."  This  phrase  in  Grenville's  commission 
applied  to  the  Americans.  Franklin  scrutinized  the  words  and 
decided  that  the  commission  was  unsatisfactory,  because  Eng- 
land had  constantly  denied  that  the  Americans  constituted  an 
independent  state.  Grenville  was  the  son  of  the  author  of  the 
Stamp  Act,  an  ambitious  young  man,  anxious  to  establish  a 
reputation  as  a  diplomat.  He  did  succeed  in  concluding  a 
preliminary  agreement  with  Vergennes  of  which  the  principal 
parts  were:  i.  England  should  treat  simultaneously  with  all  the 
belligerents.  2.  The  independence  of  the  United  States  should 
be  recognized.  3.  The  Treaty  of  Paris,  1763,  should  be  regarded 
as  the  starting  point. 

Shelburne  sent  Oswald,  a  wealthy  Scot  who  had  acquired 
considerable  property  in  America  through  marriage,  to  confer 
informally  with  Vergennes  and  Franklin.  Oswald  asked  for 
a  statement  of  what  Franklin  thought  would  be  essential  re- 
quirements for  the  establishment  of  peace.  Franklin  advised 
that  Oswald  should  be  designated  to  treat  with  the  United 
States  alone; 1  and  Shelburne  afterwards  consented.  Thereupon, 
Franklin  turned  over  to  Oswald  a  masterly  memorandum,  set- 
ting out  the  demands  of  the  United  States  and  laying  down  the 
program  for  the  negotiations.  These  demands  were  divided 
into  two  groups,  those  which  were  necessary  and  those  which 
were  advisable.  The  four  necessary  requirements  were:  i. 
Independence  and  the  withdrawal  of  the  British  troops.  2. 
The  boundaries  to  be  fixed.  3.  The  intolerable  Quebec  Act, 
which  gave  to  the  province  of  Quebec  the  entire  region  within  the 
later  Northwest  Territory,  should  be  disregarded  and  Quebec  be 
restricted  to  its  old  boundaries.  4.  The  Americans  must  have  the 
right  to  fish  not  only  on  the  Grand  Banks  but  within  three  miles 
of  the  Newfoundland  shore.  In  addition  Franklin  mentioned 
four  other  demands  which  he  deemed  advisable  for  Great  Britain 
to  concede  in  order  that  the  treaty  might  conform  with  the 
interests  of  the  two  nations  and  thus  insure  a  durable  peace. 
These  were:  i.  Indemnity  for  the  sufferings  of  the  Americans. 
2.  Parliament  should  acknowledge  its  error  by  repealing  the 
1  Wharton,  Diplomatic  Correspondence,  II.:  303,  319,  343. 


32  LEADING  AMERICAN  TREATIES 

obnoxious  acts  relating  to  America.  3.  The  Americans  should 
be  given  the  right  to  trade  with  the  British  Isles  and  with 
British  colonies  everywhere.  This  would  exempt  the  Americans 
from  the  rigors  of  the  British  mercantile  system.  4.  All  of 
Canada  should  be  surrendered  to  the  United  States.  For  full 
measure,  he  inserted  that  the  United  States  could  do  nothing  for 
the  tory  refugees.1 

Lord  Rockingham's  death,  July  i,  1782,  removed  the  friction 
between  the  departments  of  Fox  and  Shelburne.  Shelburne 
became  Prime  Minister  and  Fox  retired  from  office.  Grenville 
was  recalled  from  Paris  and  Oswald  left  in  charge.  Since  the 
crown  had  no  authority  to  alienate  the  territory  of  the  United 
States  without  the  consent  of  Parliament  a  bill  was  introduced 
and  passed,  July  25,  1782,  enabling  the  King  to  consent  to  a 
treaty  of  independence. 

The  Continental  Congress  had  authorized  a  commission  of 
five  members  to  treat  with  Great  Britain:  Adams,  Franklin,  Jay, 
Laurens,  and  Jefferson.  The  illness  of  his  wife  detained  Jefferson 
at  home.  Laurens  was  still  in  the  Tower  of  London,  but  his 
exchange  for  Cornwallis  had  been  arranged. 

When  Franklin  saw  the  turn  of  events  in  England  and  how 
intensely  the  British  desired  peace  he  wrote  Jay  to  come  from 
Madrid,  saying:  "Spain  has  taken  four  years  to  consider 
whether  she  will  treat  with  us  or  not,  give  her  forty. "  Franklin 
held  frequent  informal  conferences  with  Oswald  which  paved 
the  way  for  an  understanding. 

Oswald's  commission  bore  the  date  of  August  7,  1782,  and  a 
few  days  later  he  exhibited  it  to  Franklin  and  Jay.  The  com- 
mission authorized  him  "to  treat,  consult,  and  conclude  with 
any  commissioners  named  by  the  said  colonies  or  plantations, 
or  any  body  or  bodies  corporate  or  politic,  assembly  or  as- 
semblies, or  description  of  men,  or  person  or  persons  whatsoever 
a  peace  or  truce  with  the  said  colonies  or  plantations  or  any  of 
them,  or  any  part  or  parts  thereof;  any  law,  act,  or  acts  of 
Parliament,  matter  or  thing,  to  the  contrary  notwithstanding. "  2 

•Franklin,  Works,  IX.:  354  (Spark's  edition). 
*Wharton,  Diplomatic  Correspondence,  V.:  >m. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          33 

Jay  refused  flatly  to  negotiate  on  such  basis;  he  insisted  on  the 
recognition  of  independence  as  a  prerequisite. 

Vergennes  thought  Oswald's  powers  sufficient  and  so  did 
Franklin.  But  Jay  had  become  disillusioned  about  French  and 
Spanish  philanthropy  toward  the  Americans.1  He  knew  that 
Spain  wanted  the  Appalachian  Mountains  instead  of  the  Missis- 
sippi River  as  the  western  boundary  of  the  United  States.  He 
knew  that  Rayneval,  the  confidential  secretary  of  Vergennes, 
had  submitted  a  memoir  at  Madrid  which  supported  the  Spanish 
rather  than  the  American  claim.2  Moreover,  the  British  had 
intercepted  a  letter  from  Marbois,  the  French  charge  d'affaires 
in  America,  to  Vergennes  which  urged  that  the  Americans  be 
kept  away  from  the  Newfoundland  fisheries  and  that  Great  Britain 
be  given  permanent  possession  of  New  York  City,  Charleston, 
and  the  Penobscot.3  The  British  placed  this  letter  in  Jay's 
hands,  hoping  that  after  reading  it  he  would  consent  to  negotiate 
on  the  terms  of  Oswald's  commission.  The  effect  on  Jay  was 
exactly  the  reverse.  And  when  he  heard  that  Vergennes  had 
despatched  Rayneval  on  a  secret  mission  to  London  his  gravest 
suspicions  appeared  to  him  to  be  well  founded.4 

In  his  anxiety  Jay  went  beyond  good  diplomatic  usage,  and, 
without  consulting  Franklin,  sent  a  friend,  an  Englishman, 
Benjamin  Vaughan,  to  intercede  for  the  American  cause  with 
the  members  of  the  British  cabinet.  Jay  instructed  Vaughan 
to  argue  that  it  was  to  the  interest  of  France  and  not  of  England 
to  postpone  the  recognition  of  independence,  that  the  United 
States  would  not  make  peace  without  the  fisheries^  and  that  the 
plans  for  reserving  the  fisheries  for  the  French  and  English  and 
for  keeping  the  Americans  away  from  the  Mississippi  would  sow 
seeds  of  discord  that  might  lead  to  future  war.5  Jay  sent  at  the 
same  tune  a  message  to  Adams  to  come  from  The  Hague,  for 
Adams  was  the  commissioner  most  familiar  with  the  fisheries 

1  Wharton, Diplomatic  Correspondence,  IV.:  460;  Jay,Correspondence,II.: 
376. 

2  Jay,  Correspondence,  II.:  398. 
3W.  Jay,  Life  of  Jay,  I.:  490. 
4  Jay,  Correspondence,  II,:  399. 
6  Ibid.,  II.:  403. 


34  LEADING  AMERICAN  TREATIES 

question;  indeed,  the  fisheries  constituted  one  of  the  leading 
industries  of  Adams'  home  State,  Massachusetts.  When  Frank- 
lin found  out  about  Vaughan's  mission  he  entertained  no  resent- 
ment against  Jay,  and  the  two  remained  good  friends  to  the  end. 

Jay's  suspicion  about  the  object  of  Rayneval's  mission  proved 
to  be  incorrect,  but  Vaughan  accomplished  his  purpose.  Shel- 
burne  asked:  "Is  a  new  commission  necessary?"  Vaughan  re- 
plied: "It  is."  So  on  September  27,  1782,  a  courier  brought  a 
new  commission  for  Oswald  to  treat  with  "The  Thirteen  United 
States  of  America,"1  the  identical  words  used  in  a  draft  of  a 
commission  submitted  by  Jay.  Jay's  victory  formed  one  of  the 
most  conspicuous  services  that  he  ever  rendered  to  his  country, 
because  on  it  turned  the  character  of  the  treaty.  Independence 
was  conceded  beforehand.  The  treaty  recognized  the  United 
States  and  Great  Britain  as  equals. 

In  the  negotiations  that  followed  three  points  stood  out 
prominently  on  the  American  side.  First,  westward  extension 
to  the  Mississippi.  Second,  the  free  navigation  of  that  river. 
Third,  the  right  to  the  Newfoundland  fisheries.  On  the  British 
side  Oswald  presented  two  points  as  essential.  First,  American 
independence  must  be  complete  and  free  from  France.  Second, 
the  debts  owed  by  the  Americans  to  the  British  must  be  secured 
and  the  rights  of  the  loyalists  must  be  restored. 

Four  drafts  of  the  treaty  were  considered  before  the  work  was 
completed.  Jay  drew  up  the  first  one.  It  embraced  boundaries; 
details  of  peace,  such  as  the  release  of  prisoners,  disposition  of 
archives;  the  Newfoundland  fisheries,  both  inshore  and  on  the 
banks;  the  free  navigation  of  the  Mississippi  to  both  parties; 
and  American  merchants  and  merchant  vessels  should  enjoy  the 
same  privileges  and  protection  in  British  ports  as  the  English 
with  the  exception  of  the  exclusive  use  and  trade  granted  to  the 
chartered  trading  companies.  In  United  States  ports  British 
merchants  and  merchant  vessels  should  enjoy  the  same  pro- 
tection as  the  American.  With  regard  to  the  boundaries  Jay 
proposed  to  begin  with  the  mouth  of  the  St.  Johns  River,  follow 
it  midstream  up  to  the  highlands  that  formed  the  watershed 
'Wharton,  Diplomatic  Correspondence,  V.:  446. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          35 

between  the  St.  Lawrence  and  the  Atlantic,  follow  the  crest  of 
these  highlands  southwestward  to  the  Connecticut  River,  then 
down  that  stream  to  the  forty-fifth  degree  parallel,  which  to-day 
bounds  Vermont  on  the  north,  then  along  that  parallel  to  the 
St.  Lawrence,  thence  to  the  southern  point  of  Lake  Nipissing; 
and  from  that  point  by  a  direct  line  to  the  source  of  the  Missis- 
sippi River;  down  that  river  to  the  thirty-first  degree  parallel, 
which  is  the  present  northern  boundary  of  western  Florida; 
thence  east  to  the  Chattahoochee  River,  down  it  to  the  junction 
with  the  Flint  River;  then  eastward  to  the  head  waters  of  the 
St.  Marys  and  down  the  St.  Marys  to  the  sea.  He  included  all 
islands  within  twenty  leagues  of  the  shore.1 

Throughout  these  negotiations  Oswald  exercised  no  pleni- 
potentiary powers.  Each  proposal  made  by  the  Americans 
was  sent  by  messenger  to  the  cabinet  in  London  for  its  action. 
Franklin  and  Jay  could  not  communicate  with  the  home  govern- 
ment and  were  therefore  obliged  to  act  for  themselves.  On 
October  23,  1782,  the  reply  to  the  first  draft  came  from  the  cab- 
inet. It  carried  a  tone  of  exultation  instilled  by  the  recent  com- 
plete defeat  of  the  combined  French  and  Spanish  attempt  upon 
Gibraltar.  The  reply  objected  to  the  boundaries  and  to  the 
omission  of  a  provision  for  the  tories.  The  reply  claimed  that 
Nova  Scotia  reached  to  the  Kennebec  River  and  that  the  prov- 
ince of  Quebec  included  all  of  the  subsequent  Northwest  Terri- 
tory down  to  the  Ohio  River  in  accordance  with  the  intoler- 
able Quebec  Act.  The  Americans  should  have  no  right  to 
dry  fish  on  the  shores  of  Newfoundland  and  Great  Britain 
refused  to  modify  her  navigation  laws  in  favor  of  American  trade. 
The  cabinet  thought  also  that  Oswald  had  more  than  met  his 
match  in  Jay  and  Franklin;  so  they  sent  Henry  Strachey,  Under 
Secretary  for  Foreign  Affairs,  once  the  secretary  of  Clive  and  of 
Lord  Howe's  commission,  to  assist.2 

Three  days  later,  October  26,  John  Adams  arrived  fresh 
and  buoyant  from  his  diplomatic  triumph  in  Holland.  He 
brought  with  him  maps  and  documents  relating  to  the  north- 

1  Wharton,  Diplomatic  Correspondence,  V.:  452. 

2  Fitzmaurice,  Life  of  Shelburne,  III.:  281;  Wharton,  V.:  472. 


36  LEADING  AMERICAN  TREATIES 

eastern  boundary  and  to  the  fisheries.  In  the  suspicion  of 
France  and  Spain  Adams  readily  took  sides  with  Jay.  Adams 
wrote:  "The  doctor  heard  me  patiently  but  said  nothing." 
A  few  days  later  Franklin  remarked  to  Jay:  "I  am  of  your 
opinion  and  will  go  on  with  these  gentlemen  in  the  business 
without  consulting  this  court. "  l  This  decision  on  the  part 
of  the  American  commissioners  violated  the  positive  instruc- 
tions from  Congress  as  well  as  the  spirit  of  Article  VIII  of  the 
Treaty  of  Alliance  with  France.  But  Jay  and  Adams  reasoned 
that  France  was  trying  to  curtail  the  American  claims;  and  they 
assumed  that  their  instructions  were  for  the  benefit  of  the  United 
States,  and  that  when  circumstances  seemed  to  prove  that  they 
were  not,  then  it  became  the  duty  of  the  negotiators  to  disregard 
those  instructions.  "They  at  once  withdrew  the  interests  of 
their  country  from  the  common  stock  of  equivalents,  liable  to  be 
used  like  counters  to  equalize  the  bargains  of  the  general  nego- 
tiation. And  by  saving  the  pride  of  the  British  government, 
they  induced  them  to  offer  far  easier  terms  of  reconciliation  than 
would  have  been  obtained,  had  they  been  passed  under  the  pat- 
ronage of  their  most  formidable  enemy. "  2 

Strachey  took  back  to  the  cabinet  the  second  draft3  of  the 
treaty  on  November  5,  1782.  The  Americans  had  consented 
to  draw  the  northeastern  boundary  back  from  the  St.  Johns 
to  the  St.  Croix  River  and  to  project  to  the  westward  the  north- 
ern boundary  of  Vermont  along  the  forty-fifth  parallel  until  it 
reached  the  Mississippi.  Fortunately  for  the  Americans  the 
cabinet  rejected  the  forty-fifth  parallel  west  of  the  St.  Lawrence 
River,  for  although  this  line  would  have  given  the  United  States 
a  considerable  part  of  Ontario  it  would  have  cut  Lake  Huron 
in  two  and  the  northern  part  of  Michigan  and  Wisconsin  and 
of  Minnesota  north  of  Minneapolis  would  have  been  lost.  The 
third  draft4  on  the  boundary  was  substantially  the  present  one, 
although  there  have  been  many  conventions  and  commissions 
to  decide  upon  its  exact  location.  The  boundary  followed  the 

'John  Adams,  Works,  III.:  336. 
1  Charles  Francis  Adams  in  Adams,  Works,  I.:  392. 
lWharton,  Diplomatic  Correspondence,  V.:  455. 
•  Ibid,  V.:  461. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          37 

St.  Croix  to  its  source;  thence  to  and  along  the  watershed  be- 
tween the  rivers  that  flow  into  the  St.  Lawrence  River  and  into 
the  Atlantic  Ocean  to  the  northwesternmost  head  of  the  Con- 
necticut River;  down  the  middle  of  that  river  to  the  forty-fifth 
degree  north  latitude;  thence  due  west  to  the  St.  Lawrence; 
down  the  middle  of  that  river  to  Lake  Ontario;  thence  through 
the  middle  of  this  lake,  and  of  the  Niagara  River,  through  the 
middle  of  Lake  Erie,  the  Detroit  River,  Lake  St.  Clair,  and  the 
St.  Clair  River,  through  the  middle  of  Lake  Huron  and  of  the 
communication  with  Lake  Superior,  and  through  the  middle 
of  that  lake  so  as  to  give  Isle  Royale  and  Isle  Philipeaux  to  the 
United  States;  thence  up  the  Rainy  River  to  the  Lake  of  the 
Woods;  thence  directly  across  that  lake  to  its  northwesternmost 
corner,  and  from  thence  due  west  to  the  Mississippi;  down  the 
middle  of  that  river  to  the  intersection  with  the  thirty-first 
degree  north  latitude;  thence  east  to  the  Chattahoochee,  down 
the  middle  thereof  to  its  junction  with  the  Flint  River;  thence 
straight  to  the  head  of  the  St.  Mary's  River  and  down  the  middle 
of  that  stream  to  the  Atlantic  Ocean.  Excepting  such  islands 
as  were  a  part  of  Nova  Scotia,  the  United  States  was  to  have  all 
the  islands  within  twenty  leagues  of  its  coast.1 

As  far  as  Great  Britain  and  the  United  States  were  concerned 
the  free  navigation  of  the  Mississippi  was  assured  to  the  citizens 
of  both  countries.  Spain  held  both  sides  of  that  river  at  the 
mouth.  And  according  to  a  fairly  well-recognized  principle  of 
that  day  the  possession  of  both  sides  of  the  mouth  of  a  river 
gave  complete  control  of  the  navigation.  It  was  the  enforce- 
ment of  this  principle  together  with  Hamilton's  excise  tax 
that  caused  the  Whiskey  Rebellion  in  western  Pennsylvania. 

Three  knotty  problems  remained:  The  debts  incurred  before 
the  outbreak  of  the  Revolution,  and  these  were  almost  wholly 
owed  by  the  Americans;  compensation  to  the  loyalists  who  had 
fled  either  voluntarily  or  under  compulsion  and  whose  property 
had  been  confiscated;  and  the  right  to  the  fisheries. 

Strachey  prided  himself  greatly  on  obtaining  Article  IV: 
"It  is  agreed  that  creditors  on  either  side  shall  meet  with  no 
1Malloy,  Treaties,  etc.,  I.:  587. 


38  LEADING  AMERICAN  TREATIES 

lawful  impediment  to  the  recovery  of  the  full  value  in  sterling 
money,  of  all  bona  fide  debts  heretofore  contracted."1  As  a 
matter  of  fact,  it  afterward  became  very  difficult  for  the  British 
to  collect  these  debts  before  American  juries;  and  for  that 
reason  the  British  held  on  to  the  forts  in  the  northwest  longer 
than  dictated  by  the  phrase  "all  convenient  speed,"  which  the 
treaty  provided.  These  claims  were  finally  paid  by  the  United 
States  under  the  Convention  of  1802,  the  amount  being 
$2,664,000.  But  these  impediments  could  not  be  foreseen. 

In  regard  to  the  loyalists,  Franklin  made  four  points.  First: 
The  States  alone  and  not  Congress  had  the  power  to  compensate 
the  loyalists.  This  was  good  constitutional  law  under  the 
Articles  of  Confederation.  Second:  It  would  cost  either  party 
less  to  pay  these  tories  outright  than  to  prolong  the  war  until  the 
States  might  make  payment.  Third:  France  was  supporting 
the  claims  of  the  loyalists  for  the  reason  that  she  might  prevent 
an  agreement  between  Great  Britain  and  the  United  States. 
And  fourth:  If  the  King  thought  it  a  bad  precedent  to  make 
peace  without  securing  payment  for  the  tories  he  could  provide 
for  their  payment  himself.2  Franklin  drew  up  an  article  pro- 
posing that  England  should  compensate  the  Americans  for  the 
damages  committed  by  the  British  forces.  No  doubt  he  used 
this  argument  as  a  weapon  and  threw  it  away  when  it  no  longer 
served  a  purpose.  The  discussion  about  the  tories  was  prolonged 
and  bitter.  Indeed,  the  negotiations  might  have  been  broken  off 
on  this  account  had  not  the  cabinet  felt  that  it  was  necessary  to 
have  the  treaty  completed  by  November  25,  when  Parliament 
was  to  convene.  The  Americans  yielded  sufficiently  to  agree 
that  Congress  should  recommend  to  the  respective  State  legisla- 
tures to  make  restitution  for  the  rights  and  properties  confis- 
cated from  the  loyalists.  As  was  generally  understood  the 
legislatures  were  free  to  refuse  to  comply  with  this  recommenda- 
tion, which  they  did.  Parliament  made  several  grants  to  these 
unfortunate  claimants  from  1782  on,  but  not  until  1790  when  it 
became  clearly  evident  what  the  attitude  of  the  State  legisla- 

'Malloy,  Treities,  etc.,  I.:  588. 

'Franklin,  Writings,  VIII.:  527,  621  ff.  (Smyth  edition). 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          39 

tures  was,  did  that  body  make  an  appropriation  of  over 
£3,000,000  for  the  loyalists. 

On  the  question  of  the  fisheries  Adams  was  at  his  best,  and 
his  colleagues  stood  loyally  by  him.  He  argued  that  the  fisheries 
furnished  a  nursery  for  seamen  and  that  if  the  Americans  did 
not  secure  a  right  to  the  fishing  grounds  the  French  would  take 
possession  of  them,  and  consequently  the  French  navy  would  be 
strengthened.  He  argued  further  that  the  Americans  carried  the 
fish  to  Portugal  and  to  Spain,  then  took  the  money  to  England, 
there  to  buy  the  manufactured  articles  needed  at  home. 
The  English  knew  well  that  the  Americans  were  good 
customers. 

He  spent  the  whole  day  of  Friday,  November  29,  1782,  in 
arguing  this  point.  Oswald  and  Strachey  had  called  in  Fitzher- 
bert,  a  brilliant  young  man  of  thirty-three,  who  was  conducting 
the  negotiations  with  France  and  Spain.  Besides  Jay  and 
Franklin,  Henry  Laurens  appeared  for  the  first  time;  he  had 
recently  been  released  from  the  Tower  of  London  in  exchange 
for  Cornwallis.  Strachey  proposed  to  substitute  "liberty" 
for  the  "right"  of  fishing  on  such  part  of  the  coast  of 
Newfoundland  as  British  fishermen  might  use  and  on  the 
coasts,  bays,  and  creeks  of  other  English  dominions  in 
America.  Adams  rose.  "Gentlemen,  is  there  or  can  there  be 
a  clearer  right?  In  former  treaties, — that  of  Utrecht  and  that 
of  Paris, — France  and  England  have  claimed  the  right,  and 
used  the  word.  When  God  Almighty  made  the  banks  of  New- 
foundland, at  three  hundred  leagues  distance  from  America, 
and  at  six  hundred  leagues  distance  from  those  of  France  and 
England,  did  he  not  give  as  good  a  right  to  the  former  as  to 
the  latter?  If  Heaven  in  the  creation  gave  a  right,  it  is  ours 
at  least  as  much  as  yours.  We  have  been  constantly  fighting 
in  Canada,  Cape  Breton,  and  Nova  Scotia,  for  the  defence  of 
this  fishery,  and  have  expended  beyond  all  proportion  more  than 
you.  If,  then,  the  right  cannot  be  denied,  why  should  it  not  be 
acknowledged,  and  put  out  of  dispute?  Why  should  we  leave 
room  for  illiterate  fishermen  to  wrangle  and  chicane?"  Mr. 
Fitzherbert  replied.  "The  argument  is  in  your  favor.  I  must 


40  LEADING  AMERICAN  TREATIES 

confess  your  reasons  appear  to  be  good;  but  Mr.  Oswald's 
instructions  were  such  that  he  could  not  agree.  And  for  my  part 
I  have  not  the  honor  and  felicity  to  be  a  man  of  that  weight  and 
authority  in  my  country  that  you,  gentlemen,  have  in  yours. 
I  have  the  accidental  advantage  of  a  little  favor  with  the  present 
minister;  but  I  cannot  depend  upon  the  influence  of  my  own 
opinion  to  reconcile  a  measure  to  my  countrymen.  We  can 
consider  ourselves  as  little  more  than  pens  in  the  hands  of  the 
government  at  home;  and  Mr.  Oswald's  instructions  are  so 
particular. "  l 

Oswald  and  Strachey  wanted  to  refer  the  matter  to  London. 
Adams  was  willing.  But  Fitzherbert  faltered  and  remarked: 
"  It  was  going  to  sea  again. "  He  felt,  no  doubt,  that  a  completed 
American  treaty  might  hasten  his  own  negotiations  with  France 
and  Spain.  Franklin  said  that  if  another  messenger  had  to  go 
to  London  the  article  on  the  debts  and  on  the  proposition  of 
compensation  for  sufferers  in  America  would  have  to  be  recon- 
sidered. This  was  a  thrust  at  Strachey  who  prided  himself  on 
the  manner  of  disposing  of  the  debts  owed  by  Americans  to  the 
British  when  the  war  broke  out.  Fitzherbert,  Oswald,  and 
Strachey  retired  for  a  conference.  They  returned  willing  to 
concede  the  extent  of  the  inshore  fisheries  and  the  privileges  of 
using  the  harbors  and  of  drying  and  curing  on  the  uninhabited 
coasts,  but  they  insisted  on  the  word  "liberty"  instead  of 
"right"  of  fishing.  Thereupon,  the  commissioners  on  both 
sides  agreed  to  leave  the  settlement  of  the  fisheries  for  the  de- 
finitive treaty.  They  sat  down,  read  over  the  whole  treaty, 
made  a  few  corrections,  and  agreed  to  meet  the  next  day  to 
sign  and  seal  the  preliminary  articles  which  were  left  for  the 
secretaries  to  copy. 

They  did  meet  the  next  day,  first  at  Jay's  quarters  and  then 
at  Oswald's.  The  Americans  had  inserted  in  their  draft  that 
the  loyalists  could  remain  in  the  United  States  for  twelve  months 
unmolested  in  order  to  recover  their  estates  if  they  could. 
Strachey  had  directed  that  this  be  left  out  of  the  British  draft, 
thus  leaving  the  loyalists  unlimited  time.  The  provision  was 
»John  Adams,  Works,  III.:  333  (Diary). 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          41 

inserted.  Laurens  was  a  South  Carolinian  and  an  owner  of 
slaves.  He  proposed  the  insertion  of  a  clause  in  Article  VII 
providing  that  the  British  troops  hi  withdrawing  should  not 
carry  away  "any  negroes  or  other  property  of  the  American 
inhabitants, "  which  was  agreed  to.  A  curious  secret  article  was 
added,  providing  that  if  Great  Britain  should  obtain  West 
Florida  from  Spain,  the  southern  boundary  of  the  United  States 
should  be  drawn  from  the  mouth  of  the  Yazoo  River  eastward 
to  the  Appalachicola  or  about  one  hundred  miles  north  of  the 
boundary  established  in  the  treaty.  Spain  did  not  cede  West 
Florida  to  Great  Britain  and  later  used  this  article  as  proof  of 
title  to  the  strip.  The  treaties  were  then  signed  by  Oswald  for 
Great  Britain  and  by  Adams,  Franklin,  Jay,  and  Laurens  for  the 
United  States.  The  seals  were  affixed  and  the  copies  of  the 
treaty  exchanged.  Whereupon,  all  of  the  commissioners  drove 
out  to  Passy  and  had  dinner  with  Franklin.1 

On  January  20,  1783,  Fitzherbert,  Adams,  and  Franklin 
signed  an  armistice.  The  article  on  the  fisheries  was  made 
more  specific.  Adams  had  to  yield  on  the  word  "right"  and 
to  accept"  liberty  to  take  fish  of  every  kind"  on  that  part  of  the 
coast  of  Newfoundland  which  British  fishermen  might  use  and 
"on  the  coasts,  bays,  and  creeks  of  all  other  of  His  Britannic 
Majesty's  dominions  in  America. "  The  Americans  should  have 
the  liberty  to  dry  and  cure  fish  in  any  of  the  unsettled  bays, 
harbors,  and  creeks  of  Nova  Scotia,  Magdalen  Islands,  and 
Labrador;  but  as  soon  as  these  should  become  settled,  agree- 
ments would  have  to  be  made  with  the  proprietors.  Newfound- 
land was  not  included  in  the  provision  for  drying  and  curing 
fish.2 

The  secret  article  was  omitted.  Otherwise  the  terms  of 
the  provisional  treaty,  properly  documented,  were  in  substance 
those  of  the  definitive  treaty,  signed  September  3,  1783.  The 
same  commissioners  signed  except  that  David  Hartley  had 
succeeded  Richard  Oswald. 

Only  after  the  signature  of  the  provisional  treaty  did  Franklin 

1  Adams,  Works,  III.:  336. 
2Malloy,  Treaties,  I.:  588. 


42  LEADING  AMERICAN  TREATIES 

communicate  to  Vergennes  the  import  of  the  agreement.  Ver- 
gennes  replied:  "I  am  at  a  loss,  sir,  to  explain  your  conduct  and 
that  of  your  colleagues  on  this  occasion.  You  have  concluded 
your  preliminary  articles  without  any  communication  between 
us,  although  the  instructions  from  Congress  prescribe  that  noth- 
ing shall  be  done  without  the  participation  of  the  King. — You 
are  wise  and  discreet,  sir;  you  perfectly  understand  what  is  due 
to  propriety;  you  have  all  your  life  performed  your  duties.  I 
pray  you  to  consider  how  you  propose  to  fulfill  those  which  are 
due  to  the  King?  I  am  not  desirous  of  enlarging  these  re- 
flections; I  commit  them  to  your  own  integrity.  When  you 
shall  be  pleased  to  relieve  my  uncertainty  I  will  entreat  the 
King  to  enable  me  to  answer  your  demands. "  1 

Franklin's  reply  shows  at  least  an  equal  mastery  of  the  art 
of  negotiation.  "Nothing  has  been  agreed  in  the  preliminaries 
contrary  to  the  interests  of  France;  and  no  peace  is  to  take  place 
between  us  and  England  till  you  have  concluded  yours.  Your 
observation  is,  however,  apparently  just,  that  in  not  consulting 
you  before  they  were  signed,  we  have  been  guilty  of  neglecting  a 
point  of  bienseance.  But  as  this  was  not  from  want  of  respect 
for  the  King,  whom  we  all  love  and  honor,  we  hope  it  will  be 
excused,  and  that  the  great  work,  which  has  hitherto  been  so 
happily  conducted,  is  so  nearly  brought  to  perfection,  and  is  so 
glorious  to  his  reign,  will  not  be  ruined  by  a  single  indiscretion 
of  ours.  And  certainly  the  whole  edifice  sinks  to  the  ground 
immediately  if  you  refuse  on  that  account  to  give  us  any  further 
assistance." 

"It  is  not  possible  for  any  one  to  be  more  sensible  than  I 
am  of  what  I  and  every  American  owe  to  the  King  for  the 
many  and  great  benefits  and  favors  he  has  bestowed  upon  us. 
All  my  letters  to  America  are  proofs  of  this;  all  tending  to  make 
the  same  impressions  on  the  minds  of  my  countrymen  that 
I  felt  in  my  own.  And  I  believe  that  no  prince  was  ever  more 
beloved  and  respected  by  his  own  subjects  than  the  King  is 
by  the  people  of  the  United  States.  The  English,  I  just  now 
learn,  flatter  themselves  they  have  already  divided  us.  I  hope 
1  Wharton,  Diplomatic  Correspondence,  II.:  403. 


THE  TREATY  OF  INDEPENDENCE.    PARIS,  1783          43 

this  little  misunderstanding  will  therefore  be  kept  a  secret,  and 
that  they  will  find  themselves  totally  mistaken. "  1 

Vergennes  treasured  no  ill  feeling.  But  he  did  write  to  the 
French  minister  in  the  United  States,  Luzerne,  that  he  thought 
the  members  of  Congress  ought  to  know  that  the  commissioners 
had  violated  their  instructions,  but  he  was  not  to  mention  it  as  a 
complaint.  Robert  R.  Livingston,  the  secretary  for  foreign 
affairs,  wrote  a  sharp  criticism  to  the  commissioners.2  But 
their  immense  services  overshadowed  small  irregularities. 

The  Americans  had  carried  their  main  points:  independence, 
boundaries,  and  the  fisheries.  The  treaty  was  of  incalculable 
value  for  both  internal  and  external  affairs.  The  Americans  were 
so  exhausted  that  they  needed  a  period  of  peace.  No  one  could 
foresee  the  great  European  wars  that  were  to  follow  from  1793 
on;  but  if  the  Americans  had  not  been  completely  free  from 
Great  Britain  they  would  have  been  inevitably  pulled  into  the 
current,  with  utter  economic  exhaustion  as  a  consequence.  But 
the  position  of  the  Americans  as  neutrals  enabled  them  to  gain 
great  commercial  advantages  for  they  became  the  great  common 
carriers  on  the  high  seas  and  their  products  found  a  ready 
market  in  the  warring  countries  of  Europe. 

The  outstanding  personal  feature  of  the  treaty  is  the  skill, 
talent,  and  patience  of  the  American  commissioners.  It  would 
almost  appear  fortunate  that  there  existed  no  wireless,  no 
cables,  no  speedy  means  of  communication.  They  were  often 
censured  and  criticized  by  their  fellow  countrymen.  They  were 
neglected  and  slighted  by  foreign  diplomats,  or  at  best  intrigued 
against.  At  tunes  they  were  pressed  for  money  to  live  on, 
because  Congress  was  irregular  in  its  financial  affairs.  One 
cannot  escape  the  conclusion  that  they  bore  themselves  as  the 
peers  of  the  best  diplomats  of  any  or  all  time. 

1  Wharton,  Diplomatic  Correspondence,  II. :  404. 

2  Ibid.,  V.:  480. 


44  LEADING  AMERICAN  TREATIES 

BIBLIOGRAPHY 

ADAH s,    JOHN.  — Ten    volumes.     Edited    by    Charles   Francis    Adams. 

Boston,  1850-1856. 
DONIOL,  HENRI. — Histoire  de  la  participation  de  la  France,  etc.    Volumes 

II  and  III.     Paris,  1886-1888. 
FrrzMAURiCE,  EDMOND  GEORGE  PETTY. — Life  of  William,  Earl  of  Shelburne. 

Volume  III.     London,   1875-1876. 
FRANKLIN,  BENJAMIN. — Works.    Ten  volumes.    Edited  by  Jared  Sparks. 

Boston,  1836-1840. 
FRANKLIN,  BENJAMIN. — Writings.    Ten  volumes.    Edited  by  Albert  Henry 

Smith.    Boston,  1905-1007. 

JAMESON,  J.  F.— Saint  Euslatius,  Am.  Hist.  Rev.  VIII.:  683-708. 
JAY,  JOHN. — Correspondence  and  Public  Papers.     Four  volumes.     Edited 

by  Henry  P.  Johnston.    New  York,  1890-1893. 
JAY,  WILLIAM. — Life  of  John  Jay.    Two  volumes.    New  York,  1833. 
LYMAN,  THEODORE. — The  Diplomacy  of  the  United  States.    Two  volumes. 

Boston,    1828. 
PHILLIPS,  PAUL  C. — The  West  in  the  Diplomacy  of  the  American  Revolution. 

Urbana,  1913. 
SCOTT,  JAMES  BROWN. — The  Armed  Neutralities  of  1780  and  1800.     New 

York,    1918. 

TRESCOTT,  WILLIAM  H. — The  Diplomacy  of  the  Revolution.   New  York,  1852. 
WHARTON,  FRANCIS. — Diplomatic  Correspondence  of  the  American  Revolu- 
tion.    Six  volumes.     Washington,   1889. 


CHAPTER  III 
JAY'S  TREATY,  1794 

"It  is  as  true  now  as  when  Washington  penned  the  words,  and  will  al- 
ways be  true,  that  it  is  vain  to  expect  nations  to  act  consistently  from  any 
motive  other  than  that  of  interest.  ...  It  follows  from  this,  directly, 
that  the  study  of  interests,  is  the  one  basis  of  sound  and  provident  policy 
for  statesmen.  This  involves  a  wide  knowledge  of  contemporary  facts  as 
well  as  power  to  appreciate  them;  but  for  a  nation  to  exert  its  full  weight 
in  the  world  such  knowledge  and  appreciation  must  be  wide  spread  among 
its  plain  people  also." — A.  T.  MAHAN. 

The  treaty  granting  independence  to  the  United  States 
aroused  so  much  displeasure  in  England  that  the  adherents 
of  Fox  and  North  in  the  House  of  Commons  were  able  to  pass 
a  vote  of  lack  of  confidence  in  the  cabinet  on  February  22, 
1783.  Two  days  later  the  Shelburne  ministry  resigned.  Pitt, 
the  younger,  secured  the  ratification  of  the  treaty  in  George  III.'s 
name  on  April  19,  1784.  Congress  had  already  ratified  it  on 
January  14. 

The  United  States  wanted  a  commercial  treaty;  but  leading 
English  business  men  knew  that  they  had  a  monopoly  on 
American  trade.  They  knew  that  wars  rarely  divert  trade 
routes  permanently.  Colonial  commerce  had  been  and  now 
American  commerce  was  to  be  carried  on  largely  by  the  aid 
of  British  capital.  Lord  Sheffield  put  the  idea  nicely.  "The 
solid  power  of  supplying  the  wants  of  America,  of  receiving  her 
produce,  and  of  waiting  her  convenience,  belongs  almost  ex- 
clusively to  our  own  merchants."  *  Englishmen  understood 
American  conditions  better  than  the  French  or  the  Dutch.  The 
common  language,  common  racial  characteristics,  and  a  common 
civilization  contributed  toward  this  end.  Furthermore,  the 
industrial  revolution  appeared  earlier  in  Great  Britain  than  on 
the  continent  and  thus  gave  the  British  the  lead  in  the  produc- 
tion of  manufactures.  The  English  ports  established  themselves 
1Lord  Sheffield,  Commerce  of  the  American  States:  4. 
45 


46  LEADING  AMERICAN  TREATIES 

as  entrepdts  for  the  European  goods  which  Americans  needed. 
Great  Britain  had  a  stable  government;  the  European  countries 
approached  disorder  step  by  step,  which  left  them  behind  as 
competitors.  Great  Britain  furnished  the  best  market  for  the 
commodities  the  Americans  had  to  sell  and  for  the  articles  they 
wanted  to  buy.  Lord  Sheffield  gives  two  incidents  from  the 
American  Revolution  that  deserve  notice.  When  France  loaned 
a  sum  of  money  to  the  Continental  Congress  to  obtain  clothing 
for  the  troops,  the  American  agents  went  to  Holland  and  bought 
English  cloth  and  sent  it  to  America.  Marbois  complained  to 
Congress  and  received  the  reply  that  it  was  the  duty  of  the 
American  agents  to  get  the  best  cloth  at  the  least  cost.  Again, 
British  manufactured  goods  came  via  various  channels  through 
the  American  ports  in  such  quantities  that  the  French  minister 
repeatedly  protested  and  had  to  go  to  the  extent  of  threatening 
to  withdraw  French  aid  before  Congress  took  action  one  year 
before  the  war  closed.1 

Severe  as  the  restrictions  on  American  commerce  had  been 
before  the  war,  the  coming  of  peace  found  them  at  the  mercy 
of  the  English.  The  Americans  were  treated  as  foreigners. 
The  lucrative  and  necessary  trade  with  the  British  West  Indies 
was  reserved  for  British  vessels  exclusively.  So  was  the  trade 
with  Canada,  Nova  Scotia,  and  Newfoundland,  and  even  the 
slave  trade  with  the  African  coasts.  British  orders  in  council 
levied  discriminatory  tonnage  and  tariff  duties  on  American 
vessels  and  goods  as  compared  with  those  that  were  British 
owned.  These  measures  tended  to  destroy  the  merchant  marine 
of  New  England. 

The  agents  and  factors  of  English  merchants  established 
themselves  in  American  ports;  and  by  underselling  the  Ameri- 
can, French,  and  Dutch  business  men  they  rapidly  acquired  the 
bulk  of  the  trade  in  their  own  hands.  They  speculated  on  the 
wants  of  the  people  and  had  no  hesitancy  in  seizing  lands  and 
goods  in  satisfaction  for  debts  due  them.  The  imports  from 
Great  Britain  in  1784  amounted  to  £3,700,000,  whereas  the 
exports  to  Great  Britain  amounted  to  only  £750,000.  The 
1  Lord  Sheffield,  Commerce  of  American  Stales;  10. 


JAY'S  TREATY,  1794  47 

consequence  was  a  drain  of  specie  and  an  accentuation  of  the 
paper  money  scourge. 

No  one  could  prescribe  a  remedy.  Adams  advised  from 
Paris  that  the  States  give  to  Congress  the  power  to  levy  import 
duties  and  to  regulate  commerce  and  thus  permit  the  United 
States  to  present  a  united  front  with  retaliatory  measures.1 
Instead  of  following  Adams'  advice,  Congress  accredited  him  to 
the  court  of  St.  James  in  1785.  The  King  and  Queen  received 
him  with  due  dignity;  but  Pitt  failed  to  reciprocate  the  courtesy 
by  sending  a  minister  to  the  United  States.  The  Secretary  of 
State  for  Foreign  Affairs,  the  Marquis  of  Carmarthen,  and  Pitt, 
too,  listened  to  his  tale  with  interest,  but  neither  made  a  single 
promise  and  both  appeared  satisfied  with  the  commercial  situa- 
tion. When  Adams  mentioned  the  relinquishment  of  the  mili- 
tary posts  in  the  Northwest,  they  promptly  retorted  that  the 
English  had  been  unable  to  collect  their  debts  in  America,2  and 
that  the  Americans  refused  to  pay  interest  for  the  period  of  the 
war.  As  Adams  grew  more  aggressive  the  English  statesmen 
grew  more  civil  and  more  taciturn.  Adams  reported  to  Jay: 
"All  parties  have  committed  themselves  against  us,  except 
Shelburne  and  Buckingham,  and  the  last  of  these  is  against  a 
treaty  of  commerce  with  us."  3  Again:  "I  can  obtain  no  answer 
from  the  ministry  to  any  one  demand,  proposal,  or  inquiry. "  4 

Difficulties  connected  with  the  enforcement  of  the  Treaty  of 
Peace  continued.  The  British  forces  on  withdrawing  from  the 
seaboard  carried  away  with  them  a  goodly  number  of  slaves, 
mostly  from  the  Carolinas.  Great  Britain  continued  to  occupy 
the  posts  on  the  northern  and  the  western  frontier,  claiming 
that  the  Americans  had  neglected  to  perform  their  part  of 
the  promise  in  regard  to  the  loyalists  and  in  regard  to  the 
payment  of  debts  legally  due  Englishmen.  Adams'  instruc- 
tions from  Congress  called  on  him  to  request  the  surrender 
of  the  posts,  to  demand  satisfaction  for  the  negroes  taken,  and 
to  ask  for  a  postponement  of  the  settlement  of  the  debts.  The 

A.dams,  Works,  VIII.:  241,  280,  311,  313. 
269,  3°3- 

321. 


2  Ibid.,  VIII. 
8  Ibid.,  VIII. 
4  Ibid.,  VIH. 


48  LEADING  AMERICAN  TREATIES 

reason  for  the  latter  was  to  gain  time  to  recuperate  from  the 
devastations  of  the  war.  Adams  argued  that  holding  the  posts 
had  withheld  from  American  merchants  a  profitable  fur  trade 
and  that  furs  to  the  value  of  £100,000  would  have  gone  to  Eng- 
land in  payment  of  the  debts.  This  was  a  low  estimate,  for 
the  list  of  furs  advertised  in  London  in  the  spring  of  1787  con- 
tained over  360,000  skins,  all  from  the  United  States;  and  they 
were  conservatively  valued  at  £225,000.  l  Adams  argued  fur- 
ther that  the  removal  of  the  slaves  from  the  southern  States 
by  Sir  Guy  Carleton  meant  not  merely  a  removal  of  their  mar- 
ket value  but  it  deprived  their  masters  of  their  labor  with  which 
to  produce  goods  to  pay  the  debts.2  Nevertheless,  Adams 
could  accomplish  nothing. 

The  bitterness  among  the  Americans  about  the  posts  in- 
creased. Notably  was  this  true  of  the  pioneers  who  went  west 
to  settle  on  the  new  lands,  for  they  had  to  bear  the  brunt  of 
the  attacks  from  the  Indians.  Although  the  savages  may  not 
have  been  aggressively  encouraged  by  the  English  soldiers,  yet 
the  tribes  realized  fully  that  the  Americans  were  too  weak  to 
take  the  posts.  Moreover,  the  English  officers  assumed  at 
times  to  settle  disputes  between  the  English  and  the  Indians 
on  the  one  hand  and  the  American  pioneers  on  the  other.  The 
Americans  claimed  that  such  settlements  fell  short  of  impartial- 
ity and  that  when  they  objected  they  were  answered  with  taunts 
about  the  loyalists  and  the  debts. 

London  merchants  continued  to  enjoy  the  benefits  of  free 
trade  in  American  ports.  And  the  American  merchants  con- 
tinued to  complain  of  the  restrictions  on  their  shipping.  Their 
fish  oil  paid  eighteen  pounds  sterling  a  ton  in  England  and 
their  tobacco  paid  sixteen  pence  a  pound,  five  times  the  original 
value.3  Several  of  the  States  did  levy  what  was  called  equaliz- 
ing tariff  laws,  that  of  Pennsylvania  in  1785  being  noteworthy 
because  it  served  as  a  model  for  the  first  federal  tariff  law  of 
July  4,  1789.  These  tariffs  were  of  a  retaliatory  nature  against 

1  McMaster,  History  of  the  People  of  the  U.  S.,  L:  235. 
» Adams,  Works,  VIII.:  269. 
»Ibid.,  VIII.:  280,  284. 


JAY'S  TREATY,  1794  49 

Great  Britain  and  against  the  other  States  in  the  union  as  well. 
New  Jersey  and  Delaware  levied  no  duties;  neither  did  the 
southern  States  except  Virginia,  which  served  as  an  emphatic 
invitation  to  British  commerce  to  come  to  their  ports.  British 
statesmen  watched  these  events  and  concluded  that  it  was  use- 
less to  tie  their  own  hands  in  a  treaty  with  a  central  government 
which  had  no  means  of  compelling  the  States  to  observe  its 
provisions.  In  addition  they  cherished  a  remote  hope  that 
internal  chaos  might  bring  the  Americans  again  within  the 
British  Empire.  Before  the  constitution  had  been  adopted 
Lord  Carmarthen  remarked  to  John  Adams:  "I  presume,  Mr. 
Adams,  that  the  States  will  all  immediately  adopt  the  new 
constitution.  I  have  read  it  with  pleasure;  it  is  very  well  drawn 
up."  Adams  commented  to  Jay,  "All  this  oracular  utterance 
was  to  signify  to  me,  what  has  all  along  been  insinuated,  that 
there  is  not  as  yet  any  national  government,  but  that,  as  soon  as 
there  shall  be  one,  the  British  Court  will  vouchsafe  to  treat 
with  it."  l  Shortly  afterward  Adams  resigned.  His  patience 
and  forbearance  had  held  out  remarkably,  equaled  perhaps  only 
by  those  of  his  grandson  at  the  same  court  during  the  trying  days 
of  the  Civil  War. 

Washington  as  President  appreciated  the  danger  of  friction 
with  England;  and  he  instructed  Gouverneur  Morris,  who  was 
then,  1790,  in  London  on  business,  to  sound  the  British  govern- 
ment on  a  treaty.  Like  Adams,  Morris  accomplished  nothing. 
In  1791  the  Senate  ratified  the  appointment  of  Thomas  Pinckney 
of  South  Carolina  as  minister  to  London.  Great  Britain  decided 
to  reciprocate  and  sent  George  Hammond  as  minister  to  Phila- 
delphia. Hammond  had  been  secretary  to  David  Hartley  who 
signed  the  definitive  treaty  of  1783. 

Thomas  Jefferson  had  become  Secretary  of  State,  and  he 
discovered  that  Hammond  had  no  authority  to  negotiate  a 
treaty  of  commerce.  He  decided  therefore  to  consider  with 
the  British  minister  the  execution  of  the  Treaty  of  Peace.  In 
his  note  of  December  15,  1791,  Jefferson  presented  his  argu- 
ment under  five  headings:  First,  the  British  held  the  north- 
1  Adams,  Works,  VIII.:  475. 


50  LEADING  AMERICAN  TREATIES 

western  posts,  Michillimackinac,  Detroit,  Fort  Erie,  Niagara, 
Oswego,  Oswegatchie,  etc.,  contrary  to  the  treaty  and  these 
should  therefore  be  immediately  delivered.  Second,  the  British 
officers  had  attempted  to  exercise  jurisdiction  in  the  vicinity 
of  the  posts.  They  had  acted  as  magistrates  for  the  neighbor- 
hood, had  issued  warrants  and  conducted  trials.  These  actions 
constituted  a  violation  of  American  sovereignty  and  therefore 
of  the  treaty  as  well.  Third,  the  British  had  excluded  the  Ameri- 
cans from  navigating  their  side  of  the  boundary  of  the  Great 
Lakes  and  of  the  streams.  This  interrupted  the  American  fur 
trade,  which  was  of  consequence.  Indeed,  one  great  reason  why 
the  English  held  on  to  the  posts  was  to  monopolize  the  fur 
trade.  Fourth,  American  slaves  and  other  property  which  had 
been  carried  away  during  the  withdrawal  of  the  British  troops 
from  the  coast  should  be  paid  for.  Fifth,  it  had  been  discovered 
since  1783  that  the  river  St.  Croix  divided  into  two  branches  at 
the  mouth,  with  a  strip  of  land  between  that  widened  as  it 
stretched  inland.  It  had  become  a  matter  of  importance  to 
know  which  one  of  the  two  branches  formed  the  northeastern 
boundary  of  the  United  States.  And  he  asked  for  a  specifica- 
tion of  the  acts  on  the  part  of  the  United  States  which  Great 
Britain  considered  a  non-compliance  with  the  treaty.1 

Hammond  replied  at  length  on  March  5,  1792.  He  justified 
the  retention  of  the  posts  because  of  the  vexatious  laws  of  the 
State  legislatures  in  regard  to  the  loyalists  and  because  of  the 
unjust  decisions  of  the  state  courts  in  regard  to  the  debts.  He 
maintained  that  Congress  instead  of  facilitating  the  satisfaction 
of  these  obligations  had  thrown  obstacles  in  the  way  by  for- 
bidding the  allowance  of  interest  on  debts  for  the  period  of  the 
war.  He  said  nothing  about  the  other  points  in  Jefferson's 
despatch.2 

In  response  Jefferson  reviewed  ably  the  statutes  and  the 
decisions  of  the  courts  pertaining  to  the  loyalists  and  the  debts. 
From  this  review  he  drew  three  conclusions.  First,  under  the 
constitution  the  treaty  was  a  part  of  the  supreme  law  of  the  land 

•American  State  Papers,  Foreign  Relations,  I.:  100. 
'Ibid.,  I.:  193- 


JAY'S  TREATY,  1794  51 

and,  therefore,  all  State  laws  in  contravention  of  the  treaty  were 
null  and  void.  Second,  the  United  States  had  fulfilled  its  part 
of  the  agreements,  which  meant  that  it  had  recommended  to  the 
State  legislatures  to  pay  the  claims  of  the  loyalists  and  it  had 
removed  all  legal  obstructions  to  the  collection  of  the  debts.  The 
interest  on  the  debts  during  the  war  could  not,  however,  be 
claimed  under  the  treaty  or  under  international  law.  Third, 
the  delivery  of  the  posts  was  a  clear  and  simple  duty  and  could 
be  accomplished  on  a  moment's  notice;  but  the  change  in  legisla- 
tion in  the  thirteen  States  was  necessarily  difficult  and  slow.1 
Through  Pinckney  in  London  Jefferson  could  secure  no  better 
treatment  of  his  demands.  So  nothing  beyond  the  joining  of  the 
issues  had  been  accomplished  when  he  resigned  as  Secretary  of 
State  in  1792. 

On  June  8,  1793,  war  broke  out  between  Great  Britain  and 
France.  Forthwith,  the  two  belligerents  authorized  the  seizure 
of  provisions  in  neutral  ships  destined  for  an  enemy  port.  The 
Americans  became  the  great  neutral  carriers;  and  their  commerce 
was  ground  as  between  two  millstones.  The  number  of  ships 
greatly  increased  but  the  tonnage  decreased.  Although  the 
goods  and  the  ships  were  not  always  condemned,  yet  the  amount 
and  the  time  of  payment  were  at  the  discretion  of  the  captor.  In 
addition  Great  Britain  began  the  stopping  of  American  vessels 
upon  the  high  seas,  ordering  the  crew  on  deck,  and  pressing  into 
the  naval  service  those  whom  she  chose  on  the  pretext:  "Once  an 
Englishman,  always  an  Englishman. "  To  give  a  few  examples. 
By  1794  St.  Eustatia  reported  one  hundred  and  thirty  American 
vessels  condemned;  Bermuda,  eleven  more;  Basseterre,  thirty- 
five.  The  crews  and  many  times  the  passengers  were  either 
imprisoned  or  impressed.  And  they  did  not  have  a  scrap  of  a 
treaty  right  on  which  to  make  an  appeal.  The  Americans 
protested  and  threatened.  "What,"  said  the  British,  "what  can 
America  do  with  Great  Britain,  who  is  determined  to  have  no 
neutrals  in  this  contest?  Six  or  seven  frigates  can  block  your 
whole  coast. "  2 

1  American  State  Papers,  Foreign  Relations,  I.:  201. 
*McMaster,  II.:  167. 


52  LEADING  AMERICAN  TREATIES 

The  injury  to  the  commercial  interests  was  so  great  that 
Congress  discussed  a  plan  of  breaking  off  all  relations  with 
Great  Britain.  But  Washington  endeavored  to  make  adjust- 
ments and  to  obtain  remedies.  His  first  thought  was  to  appoint 
Hamilton  on  a  special  mission  to  Great  Britain.  But  Monroe 
convinced  the  President  that  it  would  hardly  be  a  wise  choice 
politically.  Thereupon,  Jay  was  selected  and  Edmund  Ran- 
dolph was  made  Secretary  of  State. 

Even  Jay  did  not  go  with  unanimous  approval.  It  was 
pointed  out  that  he  held  the  position  of  Chief  Justice  of  the 
Supreme  Court  and  that  he  ought  to  give  his  undivided  atten- 
tion to  its  duties.  He  had  expressed  the  opinion  that  the 
British  could  not  be  expected  to  return  the  slaves;  although  he 
thought  there  should  be  compensation.  He  had  also  expressed 
the  opinion  that  there  was  some  justification  for  the  British 
retention  of  the  posts.  Randolph  drew  up  the  instructions. 
These  were  grouped  around  six  points:  compensation  for  the 
slaves,  evacuation  of  the  posts,  repeal  of  the  orders  in  council 
which  restricted  American  trade  with  France,  abolition  of  the 
practice  of  impressment,  obtain  the  right  of  trading  with  the 
British  West  Indies,  and  comply  with  all  of  America's  obliga- 
tions to  France.1 

In  June,  1794,  Jay  arrived  in  London.  Lord  Grenville,  son 
of  the  author  of  the  Stamp  Act,  was  then  minister  for  foreign 
affairs,  and  he  received  Jay  with  cordiality.  The  two  carried 
on  their  negotiations  through  informal  conversations,  so  that 
the  chief  source  of  information  is  in  the  despatches  which  Jay 
sent  home. 

On  the  question  of  the  slaves  Grenville  argued  that  when  these 
came  into  English  hands  their  status  as  property  was  lost.2 
Jay,  as  an  anti-slavery  man,  was  greatly  impressed  with  Gren- 
ville's  argument  and  conceded  the  point.  Grenville  argued 
further  that  it  would  be  almost  impossible  to  remove  imme- 
diately the  troops  from  the  western  posts  because  of  the  difficulty 
in  sending  orders.  Jay  accepted  that  argument  as  well.  But  he 

'Jay,  Correspondence,  IV.:  10. 

1  American  State  Papers,  Foreign  Relations,  I.:  485. 


JAY'S  TREATY,  1794  53 

did  oppose  the  cession  of  an  undefined  stretch  of  territory  at  the 
head  of  the  Mississippi  River,  which  Grenville  wanted.1  On  the 
subject  of  the  seizure  of  American  vessels  and  goods  Grenville 
assured  Jay  "that  it  is  His  Majesty's  wish  that  the  most  com- 
plete and  impartial  justice  should  be  done  to  all  the  citizens  of 
America,  who  may,  hi  fact,  have  been  injured  by  any  of  the 
proceedings  above  mentioned. ' '  There  was  no  promise  of  change 
in  the  orders  in  council  affecting  trade  with  France.  The  sub- 
ject of  impressments  received  just  as  pleasant  and  evasive  words: 
"On  the  subject  of  the  impress,  Lord  Grenville  has  only  to 
assure  Mr.  Jay,  that  if  in  any  instance,  American  seamen 
have  been  impressed  into  the  King's  service,  it  has  been  contrary 
to  the  King's  desire;  though  such  cases  may  have  occasionally 
risen  from  the  difficulty  of  discriminating  between  British  and 
American  seamen,  especially  where  there  so  often  exists  an 
interest  and  intention  to  deceive."  By  November  19,  1794, 
the  negotiations  were  completed,  and  Grenville  and  Jay  signed 
the  treaty. 

Summarized  briefly  the  following  were  the  chief  provisions. 
The  British  were  to  have  one  and  one-half  years  in  which  to 
withdraw  from  the  military  posts  in  the  northwest.  Reciprocal 
rights  of  trade  across  the  border  between  Canadians  and  Ameri- 
cans were  agreed  upon.  A  joint  survey  should  be  conducted  to 
find  the  source  of  the  Mississippi  River.  A  board  of  commis- 
sioners should  determine  which  was  the  river  St.  Croix.  This 
commission  reported  its  decision  in  1798;  but  the  actual  survey 
was  not  completed  until  1878.  Another  board  was  to  determine 
the  amount  of  the  debts  owed  by  Americans  to  British  subjects 
before  the  war  broke  out.  This  board  met  and  remained  in 
session  for  two  years  but  accomplished  nothing  because  of 
disagreements.  The  board  revived  its  sessions  after  the  Treaty 
of  1802  had  provided  that  the  United  States  should  appropriate 
$2,664,000  for  the  purpose.  A  third  board  was  to  estimate  the 
losses  inflicted  on  American  merchants  by  the  illegal  capture  of 
their  ships  and  goods  by  the  British,  and,  vice  versa,  similar 

1  American  State  Papers,  Foreign  Relations,  I.:  491. 

2  Ibid.,  I.:  481,  482. 


54  LEADING  AMERICAN  TREATIES 

losses  inflicted  on  British  merchants  by  the  unlawful  actions 
of  Americans.  The  final  meeting  of  this  board  was  held  on 
February  4, 1804;  and  the  total  awards  in  favor  of  the  Americans 
were  $11,656,000  and,  in  favor  of  the  British,  $143,428.  British 
holders  of  land  in  the  United  States  were  given  full  right  to 
own  and  dispose  of  it  as  were  also  American  holders  of  land  in 
the  British  dominions.  In  the  event  of  future  war  between  the 
parties  there  was  to  be  on  either  side  no  sequestration  or 
confiscation  of  debts  owed  by  the  individuals  of  one  to  the 
individuals  of  the  other  party.  Only  the  first  ten  articles  are 
summarized  above.  They  were  intended  to  be  permanent  and 
consequently  were  not  abrogated  by  the  War  of  1812.*  The 
remaining  articles,  except  the  twelfth,  expired  October  28, 1807, 
as  provided  hi  the  treaty. 

Under  Article  XII  Great  Britain  consented  to  allow  American 
vessels  to  sail  for  purposes  of  trade  to  the  British  West  Indies, 
but  these  could  not  have  a  carrying  capacity  of  over  seventy 
tons.  Moreover,  the  United  States  agreed  to  "prohibit  and 
restrain  the  carrying  of  any  molasses,  sugar,  coffee,  cocoa  or 
cotton  in  American  vessels,  either  from  His  Majesty's  islands  or 
from  the  United  States  to  any  part  of  the  world  except  the 
United  States,  reasonable  sea  stores  excepted. "  The  restriction 
to  vessels  of  seventy  tons  capacity  was  irksome;  but  the  pro- 
vision that  no  molasses  or  sugar  could  be  obtained  was  intolera- 
able  to  the  rum  producing  and  the  rum  consuming  interests  of 
the  country.  That  Jay  should  have  permitted  the  restriction 
on  cotton  is  surprising  in  the  light  of  the  later  importance  of 
that  product.  But  in  1793  the  cotton  yield  had  been  only  five 
million  pounds,  one-tenth  of  which  was  exported.  Cotton  cloth 
was  unknown.  Cotton  was  used  chiefly  as  the  weft  or  woof 
with  linen  warp  in  velvets,  fustians,  and  jeans.  The  Senate 
refused  to  approve  this  article;  and  therefore  an  additional  article 
was  inserted  providing  for  the  suspension  of  Article  XII  so  far 
as  it  pertained  to  trade  with  the  British  West  Indies. 

Americans  might  trade  with  the  British  East  Indies,  but 

1  See  Society  for  the  Propagation  of  the  Gospel  v.  New  Haven,  8  Wheaton, 
464. 


JAY'S  TREATY,  1794  55 

they  could  not  engage  in  the  coasting  trade  nor  carry  East 
India  goods  to  third  countries;  neither  could  they  take  from  the 
East  Indies  military  or  naval  stores  or  rice.  (Article  XIII.) 
Between  Great  Britain  and  Ireland  on  the  one  hand  and  the 
United  States  on  the  other  reciprocal  freedom  of  commerce  and 
navigation  was  provided  for.  (Articles  XIV  and  XV.)  Article 
XVI  permitted  each  party  to  appoint  consuls.  The  procedure 
for  the  taking  of  contraband  from  each  other's  vessels  was 
prescribed  and  contraband  itself  was  denned.  (Articles  XVII 
and  XVIII.)  Contraband  took  on  greater  scope  in  this  treaty 
than  in  that  with  France,  as  timber  for  ship  building  and  all 
articles  that  might  be  used  for  the  equipment  of  vessels,  except 
unwrought  iron  and  fir  planks.  Furthermore,  articles  of  food 
destined  for  the  enemies  of  either  might  be  declared  contraband, 
but  if  captured  such  articles  should  be  paid  for.  This  treaty  was 
one  of  the  first  to  provide  that  provisions  could  be  considered 
contraband.  This  stipulation  stirred  up  great  friction  between 
the  United  States  and  France  because,  in  the  war  then  raging, 
the  French  wanted  to  obtain  these  supplies  from  the  Americans. 

The  two  parties  agreed  to  punish  all  piracy.  Privateering  was 
restricted.  They  agreed  not  to  resort  to  reprisals  until  after 
satisfaction  on  a  complaint  had  been  either  refused  or  unreason- 
ably delayed.  The  ships  of  war  of  each  party  were  to  be  hospi- 
tably received  in  the  ports  of  the  other.  Foreign  privateers 
could  not  arm  or  provision  their  ships  in  the  ports  of  either  party 
or  there  sell  what  they  had  captured.  But  the  ships  of  war  and 
privateers  of  either  contracting  party  could  carry  wherever  they 
pleased  the  goods  and  ships  captured  from  their  enemies.  On 
the  other  hand  no  shelter  could  be  granted  to  the  prizes  taken 
from  the  subjects  or  citizens  of  either  contracting  party  by  a 
third  power.  At  this  provision  France  not  only  took  umbrage; 
but  she  contended  that  it  was  in  violation  of  Article  XVII  of 
the  Treaty  of  Amity  and  Commerce,  1778. 

Each  party  was  to  protect  the  subjects  or  citizens  of  the  other 
and  their  property  within  cannon  shot  of  its  coast.  They  agreed 
on  the  extradition  of  fugitives  from  justice  charged  with  murder 
or  forgery. 


$6  LEADING  AMERICAN  TREATIES 

The  treaty  contained  no  mention  of  pay  for  the  negroes 
carried  off  by  Carleton,  nor  any  mention  of  the  abolition  of  the 
impressment  of  American  seamen.  But  the  treaty  did  state 
that  no  American  merchantman  could  enter  the  harbors  or 
rivers  of  Nova  Scotia,  New  Brunswick,  Canada,  and  of  the 
region  subject  to  the  jurisdiction  of  the  Hudson  Bay  Company. 

No  American  treaty  was  ever  awaited  with  greater  partisan 
interest.  But  the  President  gave  out  not  a  single  word.  He 
called  a  special  session  of  the  Senate,  and  that  body  approved  by 
a  vote  of  twenty  to  ten,  except  the  twelfth  article.  Before  ad- 
journing, the  Senate  enjoined  its  members  not  to  permit  a  copy 
of  the  treaty  to  be  made  public.  Three  days  afterward  someone 
gave  an  inaccurate  copy  to  the  newspaper  "Aurora."  Senator 
Mason  of  Virginia,  an  Anti-Federalist,  read  it,  and  thought  it 
would  be  better  to  have  an  accurate  copy  before  the  public  and 
gave  out  the  contents  of  the  real  treaty. 

Immediately  the  arguments  used  for  and  against  the  treaty 
hi  the  Senate  were  presented  to  mass  meetings  throughout  the 
country;  and  a  hundred  other  arguments,  most  of  them  quite 
irrelevant,  were  added.  The  Anti-Federalists  spent  their  fury 
first.  When  Hamilton  attempted  to  speak  in  favor  of  the  treaty 
the  New  Yorkers  pelted  him  with  stones.  Jay  was  burned  in 
effigy  in  several  cities.  The  squibs,  toasts,  and  jests  played 
with  the  name  of  the  American  negotiator.  "A  perpetual  har- 
vest to  America,  but  clipt  wings,  lame  legs,  the  pip,  and  an  empty 
crop  to  all  Jays. " 

There  were  six  principal  points  on  which  the  treaty  was 
fiercely  attacked  by  Henry  Tazewell,  Aaron  Burr,  Stevens  T. 
Mason,  Brockholst  Livingstone,  and  others.  First,  the  evacua- 
tion of  the  posts  was  deferred  too  long,  one  and  one-half  years. 
In  the  meantime  the  Americans  would  be  almost  wholly  ex- 
cluded from  the  rich  fur  trade  with  the  Indians.  Second,  the 
surrender  of  the  claim  for  the  slaves  was  unjust.  Third,  the 
prohibition  on  the  confiscation  or  sequestration  of  debts  was  a 
distinct  loss  to  the  Americans.  In  a  future  war  this  might  be  a 
much  needed  weapon.  Fourth,  the  right  granted  to  the  English 
to  hold  lands  in  America  in  virtually  the  same  manner  as  Ameri- 


JAY'S  TREATY,  1794  57 

cans  might  work  mischief.  A  widespread  fear  existed  that  the 
English  might  enlarge  their  already  vast  tracts  of  land  and 
through  colonization  bring  America  under  British  influence  if 
not  under  British  jurisdiction  again.  Fifth,  the  limitation  on 
trade  with  the  West  and  the  East  Indies  left  the  Americans  in  a 
worse  position  than  they  were  before.  Sixth,  the  extension  of 
the  contraband  list  to  include  food  products  and  naval  stores 
struck  a  blow  at  American  trade,  particularly  at  a  time  when 
France  was  the  best  customer. 

Jay,  himself,  furnished  the  best  arguments  in  defense  of  his 
treaty  in  a  famous  despatch  to  Randolph,  November  19, 1794. 
In  that  despatch  he  foresaw  the  leading  objections,  and  he,  too, 
grouped  his  arguments  around  six  points.  First,  there  was  no 
reason  to  believe  that  a  better  treaty  could  have  been  obtained. 
This  point  fell  short  of  being  a  strong  defense;  but  it  was  thought 
that  without  a  treaty  the  Americans  would  have  been  forced 
into  the  war.  Second,  the  British  traders  at  the  military  posts 
had  their  goods  and  their  credits  spread  over  large  areas  and 
over  considerable  stretches  of  time.  Therefore,  eighteen  months 
was  a  short  period  in  which  to  evacuate  the  posts.  Third,  the 
liberty  of  trade  and  travel  across  the  northern  boundary  of  the 
United  States  was  a  wise  concession  and  would  make  for  future 
understanding  and  friendship.  Fourth,  the  payment  of  the 
debts  was  a  sine  qua  non.  No  treaty  could  be  had  without  that 
provision.  Fifth,  the  prohibition  on  confiscation  and  sequestra- 
tion of  debts  was  helpful  to  the  Americans  as  borrowers.  And 
Jay  observed  that  in  all  likelihood  the  Americans  would  want 
to  borrow  foreign  captial  for  a  long  time.  And  sixth,  the  East 
India  provision  for  trade  revealed  the  good  will  of  the  English 
and  the  very  limited  provision  for  trade  with  the  British  West 
Indies  was  a  considerable  concession  from  the  hitherto  rigorous 
mercantile  policy.  But  if  this  provision  were  unsatisfactory 
the  whole  matter  of  the  West  India  trade  might  be  reconsidered 
within  two  years  after  Britain's  war  with  France  should  close.1 

On  March  i,  1796,  President  Washington  issued  a  proclama- 
tion stating  that  Jay's  Treaty  was  a  part  of  the  supreme  law  of 
1  American  State  Papers,  Foreign  Relations,  I.:  503. 


58  LEADING  AMERICAN  TREATIES 

the  land.  Not  until  March  3  did  he  send  the  treaty  to  the  House 
of  Representatives  for  its  action  on  the  appropriations  involved. 

The  House  spent  two  months  in  deliberating  whether  it 
should  or  should  not  support  the  treaty.  Two  great  constitu- 
tional questions  arose.  Could  the  House  as  a  matter  of  right 
request  the  President  to  furnish  the  papers  pertaining  to  the 
treaty?  Was  it  a  duty  of  the  House  to  vote  the  funds  necessary 
to  carry  into  effect  a  treaty  which  the  Senate  had  approved? 
When  the  request  reached  Washington  to  furnish  the  papers  he 
promised  to  give  the  matter  due  consideration.  He  had  no 
reason  to  fear  the  result  which  these  papers  might  have  on  the 
House;  but  he  declined  to  send  them.  He  maintained  ably  that 
the  House  had  no  right  to  demand  papers  which  he  might 
think  it  improper  to  transmit.1  Washington's  letter  settled 
once  for  all  that  whenever  the  House  asks  for  papers  they  are  to 
be  furnished  only  at  the  discretion  of  the  chief  executive. 

On  the  second  question  one  of  the  greatest  debates  in  the 
House  of  Representatives  occurred.  James  Madison  and  Albert 
Gallatin  maintained  that  the  House  could  refuse  the  appropria- 
tion. Fisher  Ames  made  the  notable  speech  on  the  subject  that 
the  House  could  not  and  should  not  refuse  the  appropriation. 
His  frame  was  marked  and  his  spirit  was  broken  by  the  disease 
which  later  caused  his  death,  but  Ames  took  the  floor  and  poured 
forth  his  arguments  and  convictions  in  words  that  glowed  with 
the  fire  of  a  great  cause.2  He  changed  a  majority  of  six  against 
the  carrying  into  effect  of  the  treaty  to  a  majority  of  three  in 
favor  of  the  treaty.  Rarely  may  it  be  said  that  a  speech  in  a  leg- 
islative chamber  changes  the  vote  of  one  of  the  members.  Ever 
since  the  victory  of  Fisher  Ames  the  House  has  voted  the  appro- 
priations specified  in  various  treaties. 

Jay's  treaty  is  justified  on  the  ground  that  it  was  the  best 
that  could  be  had.  Speculations  deserve  to  be  questioned;  but 
in  all  likelihood  the  treaty  saved  the  United  States  from  a  war 
with  the  British  and  the  Indians  at  a  critical  period  in  America's 
history.  Indirectly,  it  settled  two  constitutional  questions. 

1  Washington,  Writings,  XL:  115;  XII.:  112.    (N.  ¥.,1848). 
'Fisher  Ames,  Works,  II.:  37  (Boston,  1854). 


JAY'S  TREATY,  1794  59 

The  treaty  did  embarrass  the  United  States  with  France,  espe- 
cially by  including  articles  of  food  as  contraband.  But  it  speaks 
well  for  the  diplomacy  of  the  period  that  the  United  States  with 
no  army  and  no  navy  was  able  to  carry  to  a  successful  conclusion 
controversies  with  both  Great  Britain  and  France. 

BIBLIOGRAPHY 

ADAMS,  JOHN. — Works,    Ten  volumes.    Edited  by  Charles  Francis  Adams. 

Boston,  1850-1856. 

American  State  Papers,  Foreign  Relations.    Volume  I.    Washington,  1832. 
Annals  of  Congress,  1796. 
JAY,  JOHN. — Correspondence  and  Public  Papers.     Four  volumes.     Edited 

by  Henry  P.  Johnston.     New  York,  1890-93. 
JAY,  WILLIAM. — Life  of  John  Jay.    Two  volumes.    New  York,  1833. 
JOHNSON,  E.  R.    VAN  METBE,  HEOTNER,  AND  HANCHETT.    History  of 

Domestic  and  Foreign   Commerce   of  the    United  States.    Volume   I. 

Washington,  1915. 
MCMASTER,  J.  B. — History  of  the  People  of  the  United  States.   Volumes  I. 

and  II.     New  York,  1883,  1885. 
SHEFFIELD,  JOHN  LORD. — Observations  on  the  Commerce  of  the  American 

States.     London,  1784. 

TRESCOTT,  W.  H. — The  Diplomatic  History  of  the  Administration  of  Wash- 
ington and  Adams,  1789-1801.     Boston,  1857. 


CHAPTER  IV 

THE  CONVENTION  OF  PEACE,  COMMERCE,  AND 
NAVIGATION  WITH  FRANCE,  1800 

"Nor  shall  private  property  be  taken  for  public  use  without  just  com- 
pensation."— FIFTH  AMENDMENT. 

Thomas  Jefferson  negotiated  with  France  the  first  treaty  to  be 
approved  by  the  United  States  Senate.  This  was  the  Consular 
Convention  of  1788.  The  certificate  of  the  exchange  of  ratifica- 
tions bore  the  date  of  January  i,  1790.  Jefferson  occupied  by 
the  latter  date  the  position  of  Secretary  of  State.  Before  the  end 
of  that  year,  December  8, 1790,  Washington  cautioned  Congress 
about  the  disturbed  situation  hi  Europe.  Gouveraeur  Morris 
became  the  American  minister  hi  Paris.  He  grew  so  charmed 
with  the  royal  court  that  he  even  assisted  Louis  XVI.  in  his 
attempted  flight.  Upon  the  execution  of  the  King  the  revolution 
assumed  a  European  aspect,  France  declaring  war  upon  Great 
Britain,  February  9,  1793. 

Americans  felt  an  almost  universal  sentiment  of  gratitude  to 
France  for  assistance  rendered;  and  they  were  decidedly  biased 
in  favor  of  the  republican  movement.  A  liberal  fulfillment  of  the 
treaty  obligations  to  France  would  have  drawn  the  United 
States  into  the  war.  In  the  cabinet  meetings  Jefferson  espoused 
the  cause  of  the  French  sympathizers  and  Hamilton  led  the  op- 
position in  favor  of  American  rights.  On  the  question  of 
whether  the  change  hi  the  government  of  France  had  termi- 
nated the  treaties,  Washington  decided  that  they  were  binding 
and  that  he  would  recognize  the  new  republic  by  receiving  its  en- 
voy, Citizen  Gen£t,  then  on  the  way.  On  the  question  of  the 
eleventh  article  of  the  Treaty  of  Alliance,  1778,  by  which  the 
United  States  guaranteed  to  His  Most  Christian  Majesty  against 
all  other  powers  the  French  possessions  hi  America,  Washing- 
ton decided  that  among  nations  the  law  of  self-preservation  is 
paramount  and  he  issued  his  famous  proclamation,  April  22, 

60 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800     6l 

1793,  which  contained  not  the  word  "neutrality"  butthegenuine 
substance  of  that  word.  The  conduct  of  the  United  States 
should  be  "friendly  and  impartial  toward  the  belligerent 
powers. "  1  Americans  engaging  in  contraband  trade  would  not 
be  protected  against  the  usual  forfeitures.  And  the  United 
States  would  prosecute  all  persons  who  might  violate  the  law 
of  nations. 

Gen6t  landed  at  Charleston,  South  Carolina,  on  April  8,  1793, 
because  of  contrary  winds;  and  yet  his  ship  reached  Philadelphia 
before  he  did.  Genet  had  brought  with  him  two  hundred  and 
fifty  blank  letters  of  marque  and  reprisal;  and  in  Charleston  he 
issued  four  of  these  to  privateers,  which  went  to  sea  and  soon 
returned  with  English  prizes,  some  of  them  taken  within  the 
three  mile  limit  of  the  United  States.  The  British  minister, 
Hammond,  protested.  Jefferson  wrote  a  note  to  the  French 
minister  in  which  he  emphasized  that  the  arming  and  equipping 
of  privateers  in  American  ports,  the  enlisting  of  Americans  for 
the  French  service  against  a  friendly  power,  and  the  condemna- 
tion of  prizes  by  French  consuls  constituted  acts  incompatible 
with  the  territorial  sovereignty  of  the  United  States.2  Several 
Americans  who  had  enlisted  were  punished.  The  sale  of  prizes 
by  the  French  consul  in  Philadelphia  was  stopped.  A  privateers- 
man  fitted  out  in  New  York  was  detained. 

Gen£t  and  the  French  consuls  protested.  They  pointed  to  a 
decree  of  the  home  government  which  made  French  consulates 
complete  courts  of  admiralty.  Jefferson  replied  that  the 
United  States  could  recognize  no  such  exercise  of  jurisdiction 
and  that  there  was  no  basis  for  it  in  the  treaties  between  the  two 
countries.  Gene"t  pointed  to  article  twenty-two  of  the  Treaty 
of  Commerce,  1778,  as  conferring  the  exclusive  right  to  fit  out 
vessels  of  war  and  to  sell  the  prizes  taken;3  but  Jefferson  retorted 
that  the  article  expressly  denied  this  right  to  the  enemies  of 
either  party.4  Genet  and  the  French  consuls  continued  their 
obnoxious  practices.  In  October,  1793,  Gene*t  reported  to  his 

1  American  State  Papers,  Foreign  Relations,  I.:  140. 

2 Ibid.,  I.:  147. 

JIbid.,  I.:  149,  151,  155. 

4 Ibid.,  I.:  154,  163. 


62  LEADING  AMERICAN  TREATIES 

government  that  he  had  commissioned  and  fitted  out  fourteen 
privateers  which  had  taken  eighty  prizes.  Washington  had 
already  decided  to  ask  for  his  recall;  and  the  French  government 
complied  with  his  request.  The  President  revoked  also  the 
exequatur  of  the  French  vice-consul  at  Boston.  Robespierre  is 
reported  to  have  said:  "Genet  has  made  use  of  the  most  unac- 
countable means  to  irritate  the  American  government  against 
us. "  Rather  than  go  back  to  face  the  guillotine  in  Paris,  Gene4 1 
married  a  daughter  of  Governor  Clinton  and  settled  in  New 
York. 

Citizen  Fauchet  succeeded  Gene't  with  instructions  to  ask 
for  the  arrest  of  the  latter  and  to  send  him  back  to  France. 
Jefferson  declined  upon  reasons  of  law  and  magnanimity. 
Fauchet  carried  instructions  also  to  disavow  the  acts  of  Genet 
and  of  the  French  consuls  which  had  infringed  upon  American 
neutrality  and  to  open  negotiations  for  a  new  treaty  of  com- 
merce. But  France  was  not  the  only  belligerent  which  had  com- 
promised American  neutrality;  and  she  pointed  to  the  fact  that 
English  privateers  had  been  fitted  out  in  Savannah,  Philadel- 
phia, and  Boston.  Indeed,  the  very  ship  on  which  Fauchet  was 
to  embark  from  Newport  after  his  recall  was  searched  by  a 
British  vessel  within  the  three  mile  limit.1  The  baggage  of 
Fauchet  was  ransacked,  and  a  part  of  the  papers  led  to  the 
enforced  resignation  of  Randoph  as  Secretary  of  State.  Wash- 
ington asked  for  reparation  from  the  British. 

James  Monroe  followed  Gouverneur  Morris  as  the  American 
minister  at  Paris.  Monroe  won  the  confidence  of  the  French  and 
he  dispelled  all  suspicions  about  Jay's  mission  to  England. 
He  endeavored  to  raise  the  embargo  on  American  ships  at 
Bordeaux,  maintained,  as  the  French  put  the  idea,  to  protect 
merchantmen  from  capture  bv  the  British.  He  sought  also 
compensation  for  the  illegal  captures  of  American  ships  and 
goods.  The  news  of  Jay's  Treaty  created  alarm.  The  Com- 
mittee of  Public  Safety  appealed  to  Monroe  for  definite  informa- 
tion. This  he  was  unable  to  give.  The  French  discovered  quickly 
that  the  terms  of  the  treaty  granted  the  English  an  extension 
1  American  State  Papers,  Foreign  Relations,  I. :  576. 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800      63 

of  the  contraband  list  and  forbade  the  French  to  take  the  prizes 
captured  from  the  English  into  American  ports.1  Monroe 
received  instructions  from  home  to  defend  the  treaty;  but  he 
felt  that  he  could  not,  and  instead  he  encouraged  the  French  to 
hope  for  a  change  of  policy  with  the  approaching  presidential 
election.  But  the  French  Directory  decreed  that  the  alliance 
with  the  United  States  was  at  an  end  and  that  all  goods  destined 
for  Great  Britain  would  be  treated  as  contraband.  2  And  in 
November,  1796,  the  Directory  recalled  Adet,  the  minister  to 
the  United  States. 

Monroe  was  recalled  and  C.  C.  Pinckney  was  commissioned 
to  succeed  him.  Just  before  Monroe's  departure,  December 
30,  1796,  the  members  of  the  Directory  notified  him  that  they 
would  not  receive  another  minister  from  the  United  States 
until  redress  had  been  made.3  On  his  arrival  in  Paris  Pinckney 
was  not  officially  received  and  he  was  so  unjustifiably  annoyed 
that  he  went  to  Amsterdam.  The  news  of  this  rebuff  reached 
the  United  States  after  the  inaugural  of  John  Adams  as  President. 
He  decided  to  send  three  commissioners  to  Paris  to  work  for 
a  restoration  of  mutual  friendly  relations.  These  were  C.  C. 
Pinckney,  John  Marshall,  and  Elbridge  Gerry.  They  labored 
for  six  months  without  obtaining  official  recognition.  Talley- 
rand granted  them  an  informal  and  meaningless  interview;  and 
thereupon  three  men  approached  them  who  claimed  to  represent 
the  Directory,  namely,  X,  Y,  and  Z,  later  revealed  to  be  Bellamy, 
Hautval,  and  Hottinguer.  These  three  represented  that  an 
apology  was  due  for  allusions  to  the  Directory  made  by  President 
Adams  in  his  address  to  Congress,  that  the  United  States  should 
advance  a  loan  of  thirty-two  million  florins  to  France,  and  that 
the  American  commissioners  should  turn  over  pocket  money  to 
the  amount  of  one  million,  two  hundred  thousand  livres.  The 
Americans  protested  that  they  had  no  authority  to  consider 
these  requests;  and  they  sought  in  vain  to  discuss  the  real 
questions  at  issue.  Finally,  Mr.  X  informed  them  directly  that 

1  American  State  Papers,  Foreign  Relations,  I.:  721,  728,  732;  Monroe, 
Writings,  II.:  347. 

2 Ibid.,  I.:  739,  741,  745. 
J  Ibid.,  I.:  746- 


64  LEADING  AMERICAN  TREATIES 

they  were  expected  to  offer  money.  The  Americans  replied 
that  they  had  not  a  sixpence  for  bribery.  Mr.  Y  replied  that 
if  nothing  were  done  French  frigates  would  ravage  the  coasts  of 
the  United  States.1 

The  American  envoys  wrote  Talleyrand  a  long  letter  review- 
ing the  relations  between  the  two  governments.2  He  replied  that 
two  of  the  envoys  were  persona  non  grata  to  the  Directory. 
On  April  3,  1798,  the  Americans  asked  for  then-  passports  and 
for  letters  of  safe  conduct.  Pinckney  and  Marshall,  the  Federa- 
lists, were  subjected  to  discourtesies  and  left  Paris.  Gerry,  the 
Republican,  would  no  doubt  have  done  likewise  had  not  the 
French  threatened  immediate  war  if  he  did  so.3  He  remained 
until  August  i ,  but  accomplished  nothing  for  he  had  no  authority 
to  negotiate  alone.  President  Adams  declared:  "I  will  never 
send  another  minister  to  France  without  assurances  that  he  will 
be  received,  respected,  and  honored  as  the  representative  of  a 
great,  free,  powerful,  and  independent  nation. "  4 

Relations  in  the  United  States  with  France  were  at  the  break- 
ing point.  American  vessels  and  cargoes  had  been  appropriated 
for  French  use  without  payment.  French  merchants  and  agents 
of  the  government  refused  to  pay  other  obligations  of  indebted- 
ness. A  decree  of  July  2,  1796,  provided  that  neutrals  should  be 
treated  by  France  as  they  permitted  themselves  to  be  treated  by 
Great  Britain.  This  allowed  a  large  amount  of  arbitrary  power 
to  the  captains  of  French  war  vessels.  Another  decree  of 
March  2,  1797,  provided  that  enemies'  goods  on  board  neutral 
ships  should  be  seized  and  that  neutral  sailors  serving  on  enemies' 
ships  should  be  deemed  pirates.  This  meant  that  Americans 
impressed  into  the  British  service  might  be  hanged  at  the  yard- 
arms  of  the  vessel.  The  French  agents  in  the  West  Indies 
issued  several  decrees  directing  the  seizure  of  American  vessels 
carrying  contraband,  or  if  destined  for  or  coming  from  British 
ports.  Indeed,  it  was  under  these  decrees  that  most  of  the  later 
spoliation  claims  arose.  A  few  examples  will  indicate  the  char- 

1  American  State  Papers,  Foreign  Relations,  II.:  158,  161. 

1  Ibid.,  II.:   169. 

'Ibid.,  II.:  214. 

4  Adams,  Works,  DC.:  159. 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800      65 

acter  of  hundreds  of  seizures.  The  schooner  "Industry, "a 
duly  registered  vessel  of  the  United  States,  sailed  from  Boston, 
June  i,  1798,  for  Surinam  with  a  cargo  of  merchandise,  owned  by 
Marston  Watson  of  Boston,  a  citizen  of  the  United  States. 
The  schooner  was  lawfully  pursuing  its  voyage  when  seized 
and  captured  on  the  high  seas  by  the  French  privateer,  "Vic- 
toire,"  was  taken  into  the  port  of  Cayenne,  and  there  libeled, 
condemned,  and  sold  as  a  prize.  The  sole  ground  for  condem- 
nation was  that  the  role  d'equipage,  or  list  of  the  ship's  crew, 
which  she  carried  was  signed  only  by  one  notary  public,  without 
the  confirmation  of  witnesses.  The  total  value  of  the  venture 
was  $18,555.* 

The  "Venus"  was  a  duly  registered  American  vessel  of  Wells, 
Massachusetts.  On  September  12,  1796,  she  was  homeward 
bound  from  Port  au  Prince  with  a  cargo  of  molasses.  The 
French  privateer,  "La  Republique  Triomphante"  captured  her 
upon  the  high  seas,  and  took  her  into  Cape  Frangois  where  she 
was  condemned  because  the  captain  had  not  provided  himself 
with  a  sea-letter  and  an  invoice  at  Port  au  Prince;  it  being 
therefore  presumed  that  the  vessel  and  cargo  were  English.  2 

The  sloop  "Martha"  of  Fredericksburg,  Virginia,  sailed  from 
that  port  on  February  15,  1795,  with  630  barrels  of  flour  for 
Fort  Dauphin  in  Hispaniola.  Off  Port  au  Paix,  the  master  went 
in  his  boat  to  inquire  the  state  of  the  market.  He  was  ordered 
to  bring  his  vessel  into  port  or  take  the  chances  of  being  fired 
upon.  He  appealed  to  General  Lavaud,  who  insisted  that  the 
flour  should  be  delivered  for  the  use  of  the  Republic  at  twelve 
dollars  a  barrel  and  that  he  should  take  in  return  coffee  at  thirty 
sols  per  pound.  The  master  refused  and  asked  permission  to 
leave.  This  was  denied  him.  At  length  he  yielded  and  was  then 
compelled  to  sign  an  agreement  releasing  the  port  authorities 
from  responsibility.  The  price  of  the  flour  was  lower  than  the 
market  value  and  the  price  of  the  coffee  was  almost  triple  that 
of  the  market.3 

1  22  Court  of  Claims,  3. 

2  27  Court  of  Claims,  117. 

3  Ibid,  218. 


66  LEADING  AMERICAN  TREATIES 

The  American  registered  brig,  "Juno,"  left  Charleston,  No- 
vember 2,  1797,  bound  for  Santiago  de  Cuba  with  a  valuable 
cargo  of  rice,  flour,  and  beef.  On  November  n,  the  brig  was 
illegally  captured  by  the  French  privateer,  "Malounie,"  taken 
into  Santiago  de  Cuba,  from  whence  the  ship's  papers  were  sent 
by  the  French  consul  to  Cape  Francois,  where  the  vessel  and 
cargo  were  condemned  against  the  protest  of  the  master  that  the 
capture  and  condemnation  were  contrary  to  the  law  of  nations 
and  the  treaties  between  the  United  States  and  France.1 

The  schooner  "Experiment"  sailed  from  Philadelphia  for 
Antigua.  She  was  captured  on  the  high  seas  August  5,  1798, 
by  the  French  privateer  "Deux  Amis."  A  prize  crew  was 
placed  on  board,  which  robbed  the  vessel  of  a  number  of  articles 
and  carried  away  the  ship's  papers.  At  St.  Eustatius  the  cargo 
and  vessel  were  sold  without  any  trial  or  condemnation.  Later 
the  tribunal  at  Basseterre  condemned  both  as  good  prize  on  the 
ground  that  the  r61e  d'equipage  could  not  be  found  among  the 
papers.2 

The  "  Commerce  "  left  Newburyport  for  Jamaica  in  December, 
1796.  A  French  privateer  met  the  vessel,  fired  a  warning  gun; 
the  vessel  hove  to,  and  forthwith  received  a  broadside  which 
wounded  four  men.  The  schooner  "Zilpha"  left  Tobago  for 
Portsmouth,  New  Hampshire.  She  was  captured  by  a  French 
privateer,  February,  1797,  taken  into  San  Juan,  Porto  Rico, 
stripped  of  her  sails,  rigging,  and  provisions;  and  the  master  and 
crew  received  orders  to  leave  her.  The  ship  "Cincinnatus"  of 
Baltimore  was  taken  on  the  high  seas,  March  7,  1797.  The 
French  tortured  the  captain  with  thumbscrews  and  promised 
relief  if  he  would  declare  his  cargo  to  be  English  property.  He 
refused  and  was  released  with  his  vessel  after  being  robbed  of 
his  provisions. 

The  "Maria"  was  registered  at  Portsmouth  and  was  captured 
on  a  voyage  from  Tobago  to  her  home  port,  taken  into  Guade- 
loupe where  both  vessel  and  cargo  were  illegally  condemned. 
The  "Statira"  was  also  registered  at  Portsmouth,  valued  at 

1 36  Court  of  Claims,   240. 
*49  Court  of  Claims,  393. 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800      67 

$9,000.  She  left  Norfolk,  Virginia,  for  London  with  a  cargo 
of  mahogany,  logwood,  etc.,  valued  at  $6,444.  On  the  high 
seas  she  was  captured  by  the  French  vessel  "Hazard",  taken 
into  Nantes,  and  after  several  trials  the  cargo  was  unlaw- 
fully condemned,  and  the  "Statira"  herself  was  detained  for  two 
and  one-half  years  at  the  end  of  which  time  she  was  sold  to  pay 
charges  that  had  been  levied  upon  her.  So  Thomas  Manning, 
the  owner,  lost  the  vessel,  the  cargo,  the  freight,  the  expenses 
connected  with  the  trials,  seamen's  wages,  and  the  value  of  her 
outfits.  The  insurance  on  the  vessel  was  $4,121.40.  The  net 
loss  was  $23,868.80. 

On  April  27,  1798,  Congress  passed  an  appropriation  for 
arming  merchantmen.  Three  days  later  a  Secretary  of  the  Navy 
was  added  to  the  cabinet.  Other  acts  provided  for  the  creation 
of  a  marine  corps,  the  purchase  of  ships,  the  capture  of  French 
vessels,  the  suspension  of  intercourse  with  France,  and  on  July  7, 
1798,  the  abrogation  of  all  treaties  with  France.  President 
Adams  appointed  Washington  "Lieutenant-General  and  Com- 
mander-in-Chief  of  all  the  armies  raised  or  to  be  raised  in  the 
United  States. "  And  the  President  revoked  the  exequaturs  of 
the  various  French  consuls  in  the  country. 

The  President  proceeded  to  organize  the  Navy  Department. 
He  appointed  Benjamin  Stoddert  as  Secretary.  Letters  of 
marque  and  reprisal  were  issued  to  merchantmen,  although 
their  opportunity  was  small,  for  the  French  merchant  marine 
had  been  swept  from  the  seas.  Ordinary  merchantmen  were 
authorized  to  "repel  by  force  any  assault"  while  acting  on  the 
defensive.1  By  March  i,  1799,  three  hundred  and  sixty-five 
private  vessels  Jiad  been  fitted  out  with  arms  and  acted  under 
orders  from  the  navy.  The  navy  itself  grew  from  almost 
nothing  to  forty-five  vessels.  Congress  suspended  commercial 
intercourse  with  France  and  her  dependencies.  There  was  no 
declaration  of  war  on  either  side;  but  the  American  vessels 
captured  French  armed  vessels,  recaptured  American  vessels 
both  public  and  private;  and  French  merchantmen,  their  car- 
goes, and  privateers  were  condemned  as  prizes  in  American 
xAct  of  June  25,  1798. 


68  LEADING  AMERICAN  TREATIES 

courts.  The  total  number  of  prizes  taken  was  approximately 
eighty-five.  Two  of  these  were  afterward  given  up  under  the 
treaty  and  about  a  dozen  were  released  as  being  unlawfully 
taken.  Yet  no  war  existed  between  the  United  States  and 
France.  Talleyrand  and  Adet  so  held  for  France,  as  did  the 
French  prize  tribunals.1  The  United  States  Court  of  Claims  up- 
held the  same  conclusion  in  numerous  cases.2 

In  the  summer  of  1798  Talleyrand  assured  William  Vans 
Murray,  the  American  minister  at  The  Hague,  that  any  envoy 
the  United  States  might  send  to  France  "would  be  undoubtedly 
received  with  the  respect  due  to  the  representative  of  a  free, 
independent,  and  a  powerful  nation. "  3  Thereupon,  Adams 
appointed  in  due  time,  February,  1799,  a  commission  to  go  to 
Paris,  composed  of  Oliver  Ellsworth,  Chief  Justice  of  the  Su- 
preme Court,  Vans  Murray,  and  Patrick  Henry.  The  latter 
declined  to  serve,  so  Governor  William  R.  Davie  of  North 
Carolina  took  his  place.  The  three  met  in  Paris  early  in  March, 
1800,  just  as  the  Directory  was  overthrown  and  the  Consulate 
established.  They  were  therefore  presented  to  the  First  Consul, 
Napoleon,  on  March  8;  but  because  of  the  illness  of  the  chief 
French  commissioner,  Joseph  Bonaparte,  the  negotiations  did 
not  begin  until  April  7,  1800,  and  they  lasted  nearly  six  months. 

The  American  commissioners  carried  instructions  to  demand 
an  indemnity  for  spoliations  of  American  commerce.  These 
claims  were  divided  into  two  classes:  first,  the  claims  for  spolia- 
tions that  took  place  before  July  7,  1798,  which  should  be  based 
upon  the  treaties  of  1778;  second,  the  claims  for  spoliations  that 
took  place  after  July  7,  1798,  which  should  be  based  upon 
international  law.  When  the  spoliation  claims  were  settled  the 
Americans  should  then  negotiate  a  treaty  of  not  more  than 
twelve  years'  duration.  This  treaty  should  establish  a  commis- 
sion to  pass  upon  claims  between  the  two  countries.  They 

1  One  exception  is  the  "Concord,"  confiscated  by  the  commercial  tribunal 
on  the  Isle  of  France  "because  the  United  States  and  France  are  in  a 
state  of  hostilities  from  July  9,  1798."  35  Court  of  Claims,  433. 

*The  "Concord,"  35  Court  of  Claims,  432;  Gray, Administrator,  21 
Court  of  Claims,  340;  Gushing,  Administrator,  22  Court  of  Claims,  i. 

1  American  State  Papers,  Foreign  Relations,  II.:  242. 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800      69 

should  endeavor  to  exclude  French  privateers  and  prizes  from 
American  ports;  and  they  should  observe  Jay's  Treaty.  They 
were  to  omit  all  mention  of  an  alliance  with  France,  the  guaranty 
of  French  possessions,  any  semblance  of  judicial  authority  by 
French  consuls,  and  all  promises  of  aid,  financial  or  otherwise.1 

On  the  subject  of  the  spoliations  the  French  commissioners 
argued  that  there  had  been  no  valid  abrogation  of  the  treaties  of 
1778  by  the  act  of  Congress  on  July  7,  1798,  because  it  required 
the  consent  of  both  parties  to  sever  the  compacts.  They  argued 
further  that  the  hostilities  engaged  in  did  not  constitute  war  in 
the  legal  sense;  and  even  if  war  had  existed  the  treaties  were  of 
such  a  permanent  nature  that  war  could  not  affect  them.  Hence, 
the  treaties  were  still  in  force  and  would  form  the  basis  for  the 
settlement  of  claims  made  by  either  party  against  the  other. 
But,  said  the  French  commissioners,  suppose  that  war  had 
existed  and  that  the  war  had  annulled  the  treaties,  then  the 
war  had  annulled  all  claim  for  indemnity  as  well.2  On  August 
n,  1800,  they  presented  the  two  horns  of  the  dilemma  to  the 
American  commissioners:  "Either  the  ancient  treaties,  carrying 
with  them  the  privileges  resulting  from  anteriority,  together 
with  stipulations  for  reciprocal  indemnity;  or  a  new  treaty 
promising  equality,  unattended  with  indemnities."3  The 
phrase  "the  privileges  resulting  from  anteriority"  referred  to  . 
Jay's  Treaty.  The  Americans  refused  to  take  either  horn  and 
proposed  that  the  validity  of  the  treaties  of  1778  and  the  subject 
of  indemnity  for  spoliations  be  left  to  future  negotiations.  In  the 
meantime  the  treaties  in  dispute  should  remain  inoperative.4 
This  became  the  substance  of  the  second  article  in  the 
draft. 

Other  agreements  stipulated  in  the  treaty  were:  Restora- 
tion of  public  ships  taken  during  the  hostilities.  Return  of 
property  captured,  except  contraband,  but  not  condemned  be- 
fore the  exchange  of  ratifications.  Contract  debts  were  revived. 
Vessels  of  the  two  nations,  privateers,  and  prizes  were  placed  on 

1  American  State  Papers,  Foreign  Relations,  II.:  301. 

2  Ibid.,  II.    325,  329. 

3  Ibid.,  II.    332. 

4  Ibid.,  II.    339. 


70  LEADING  AMERICAN  TREATIES 

the  most  favored  nation  basis.  In  substance  the  droit  detraction 
and  the  droit  d'aubaine  were  abolished.  Debts  should  not  be 
sequestered  or  confiscated  in  time  of  war.  The  rights  and 
prerogatives  of  consuls  were  placed  on  the  most  favored  nation 
basis.  Contraband  excepted,  the  ships  and  merchandise  of  the 
citizens  of  either  party  could  freely  go  to  the  ports  of  an  enemy 
of  the  other  party;  and  such  ships  might  engage  in  the  coastwise 
trade  of  such  an  enemy  country.  As  compared  with  that  of  1778 
the  absolute  contraband  list  was  revised  so  as  to  omit  the  more 
antiquated  implements  of  warfare,  but  there  was  no  mention  of  a 
conditional  contraband  list;  and  it  was  specified  that  the  vessel 
carrying  the  contraband  as  well  as  the  residue  of  the  cargo 
should  be  free.  Free  ships  made  free  goods  except  contraband; 
but  enemy  ships  conveyed  their  character  to  neutral  goods  on 
board  except  such  neutral  goods  as  had  been  placed  on 
board  before  the  declaration  of  war.  The  right  of  visit  and 
search  was  regulated.  Prize  courts  could  sit  only  hi  the  home 
country  of  either  party.  And  the  ports  of  either  party  should  not 
become  a  naval  base  for  the  enemies  of  the  other.1 

The  crucial  article  in  the  treaty  was  the  second.  "The 
Ministers  Plenipotentiary  of  the  two  parties  not  being  able 
to  agree  at  present  respecting  the  treaty  of  alliance  of  6th 
February,  1778,  the  treaty  of  amity  and  commerce  of  the  same 
date,  and  the  convention  of  i4th  November,  1788,  nor  upon  the 
indemnities  mutually  due  or  claimed,  the  parties  will  negotiate 
further  on  these  subjects  at  a  convenient  time,  and  until  they 
may  have  agreed  upon  these  points  the  said  treaties  and  conven- 
tion shall  have  no  operation,  and  the  relations  of  the  two  coun- 
tries shall  be  regulated  as  follows:" 

Before  approving,  the  Senate  expunged  this  article  and  sub- 
stituted the  following:  "It  is  agreed  that  the  present  convention 
shall  be  in  force  for  the  term  of  eight  years  from  the  time  of  the 
exchange  of  the  ratifications."  The  resolution  of  the  Senate 
bore  the  date  of  February  3,  1801. 

Napoleon  Bonaparte,  First  Consul,  agreed  on  July  31,  1801, 
in  the  name  of  the  French  people  "  to  accept,  ratify,  and  confirm 
1  Malloy,  Treaties,  I.:  496. 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800      71 

the  above  convention,  with  the  addition  importing  that  the 
convention  shall  be  in  force  for  the  space  of  eight  years,  and  with 
the  retrenchment  of  the  second  article:  Provided,  That  by  this 
retrenchment  the  two  States  renounce  the  respective  preten- 
sions, which  are  the  object  of  the  said  article. "  l 

The  ratifications  were  exchanged  in  Paris,  July  31,  1801. 
In  due  time  President  Jefferson  submitted  the  treaty  with  the 
additions  made  by  the  First  Consul  of  France  to  the  Senate, 
which  body  on  December  19,  1801,  declared  the  convention 
ratified  and  returned  it  to  the  President  for  promulgation. 
He  issued  his  proclamation  on  December  21, 1801.  "  So  died  the 
treaties  of  1778,  with  all  the  obligations  which  they  imposed, 
and  with  them  passed  from  the  field  of  international  contention 
the  claims  of  American  citizens  for  French  spoliation"  said 
Justice  Davis  in  Gray,  Administrator  v.  the  United  States,  21 
Court  of  Claims,  387. 

But  the  Convention  of  1800  did  much  to  suspend  the  tension 
between  the  two  parties.  Its  success  was  of  a  negative  character. 
It  put  an  end  to  the  hostilities,  which,  if  continued,  would  have 
made  the  future  acquisition  of  Louisiana  improbable.  And  the 
convention  relieved  the  United  States  of  possible  entanglements 
due  to  the  treaties  of  1778  and  to  the  Convention  of  1788;  all 
three  of  which  had  proved  troublesome  during  the  previous 
decade. 

The  American  claims  against  France  up  to  September  30, 
1800,  may  be  divided  into  two  classes.  First,  those  which  were 
the  subject  of  the  second  article;  and  these  by  the  action  of  the 
United  States  Senate  and  of  Bonaparte  were  cancelled.  There- 
after, the  claimants  could  look  only  to  the  United  States  for 
satisfaction.  Second,  those  claims  which  were  the  subject  of  the 
fourth  and  fifth  articles  of  the  Convention  of  1800.  These 
involved  debts  due  for  supplies  shipped  to  France  or  due  for 
preemption  of  cargoes;  and  these  involved  compensation  due  for 
delays  to  ships  and  cargoes  because  of  various  embargoes  and 
due  for  property  captured  but  not  condemned.  This  second 
class  of  claims  was  settled  by  the  Treaty  of  1803,  when  the  United 
1  Malloy,  Treaties,  I.:  505. 


72  LEADING  AMERICAN  TREATIES 

States  assumed  them  to  the  extent  of  twenty  million  livres  as 
part  payment  of  the  purchase  price  for  Louisiana. 

As  was  clearly  understood  the  claimants  under  the  spoliations 
were  barred  from  prosecuting  their  cases  against  France.  And 
since  the  United  States  had  obtained  release  from  irksome 
treaties  by  bargaining  away  their  rights,  these  claimants  natu- 
rally looked  to  their  own  government  for  reimbursement.  The 
first  application  to  Congress  for  relief  came  in  1802.  This  was 
referred  to  a  committee,  which  made  a  report  of  the  history  of 
the  cases;  but  Congress  took  no  action.  Another  committee 
made  a  favorable  report  in  1807,  but  Congress  failed  to  act.  In 
1822  and  1824  both  the  Senate  and  the  House  committees 
reported  adversely;  the  only  adverse  reports  that  have  been 
submitted.  The  claimants  thereupon  increased  their  activities, 
which  resulted  in  the  publication  by  Congress  of  much  new 
material  in  1826.  In  1835  the  Senate  passed  a  bill  appropriating 
five  million  dollars;  but  the  House  did  not  act.  A  bill  providing 
for  the  same  amount  passed  both  houses  in  1846;  but  President 
Polk  vetoed  it.  President  Pierce  did  the  same  with  a  similar 
bill  in  1855.  Finally,  in  1885,  Congress  passed  a  law  referring 
the  cases  to  the  Court  of  Claims. 

The  statute  did  not  permit  the  Court  of  Claims  to  render 
a  decision  in  the  form  of  a  judgment  but  in  the  form  of  an 
advisory  opinion  to  Congress  based  upon  the  conclusions  of 
fact  and  law.  All  petitions  had  to  be  filed  within  two  years. 
These  had  to  show  that  the  claimant  was  of  the  next  of  kin 
of  the  original  owner  who  must  have  been  an  American  citizen 
at  the  time  of  the  capture;  that  the  vessel  was  not  bound  for  a 
blockaded  port;  that  she  had  not  resisted  search;  that  the  owner 
had  no  contraband  on  board,  and  that  the  owner  or  his  repre- 
sentative had  made  a  protest  before  the  court  which  unlawfully 
condemned  the  ship  or  the  cargo.  The  statute  made  no  pro- 
vision for  personal  injuries,  numerous  as  these  had  been;  nor 
did  it  allow  interest  on  the  original  claim.1 

The  lapse  of  nearly  a  hundred  years  had  destroyed  much 
evidence.  In  several  instances  there  was  no  next  of  kin.  Those 
1  23  Statutes  at  Large,  283. 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800      73 

claims  which  could  be  proved  the  court  reported  upon  favorably; 
which  meant  that  Congress  might  or  might  not  allow  the  money 
to  satisfy  the  recommendations  of  the  court.  Even  then  the 
appropriation  ran  the  risk  of  a  veto,  which  President  Cleveland 
applied  in  1896  to  a  bill  carrying  a  million  dollars.  So  far  Con- 
gress has  made  four  appropriations  in  payment  of  the  awards  of 
the  Court  of  Claims. 

March  3,  1891 $1,304,095.37 

March  3,  1899 1,055,473.04 

May  27,  1902 798,631 . 27 

February  24,  1905 752,660.93 


3,910,860.61 

Since  1905  no  appropriation  has  been  made  to  satisfy  an 
award  by  the  Court  of  Claims  in  a  spoliation  claim  although 
awards  beyond  a  million  dollars  in  favor  of  individual  sufferers 
are  awaiting  satisfaction.  The  Court  of  Claims  cleared  its 
docket  of  all  remaining  French  spoliation  cases  in  1915.  The 
Attorney  General  stated  in  his  annual  report  for  1915  that 
6,479  cases  relating  to  2,309  vessels  had  been  disposed  of  under 
the  act  of  January  20,  1885.  Out  of  the  total  number  of  cases 
4,626  were  decided  in  favor  of  the  United  States,  leaving  1,853 
decided  in  favor  of  claimants.  It  should  be  stated  that  the  policy 
of  Congress  has  been  to  exclude  from  the  appropriations  all 
awards  in  favor  of  insurance  companies. 

The  opinion  of  President  Taf  t  on  the  obligation  of  Congress 
to  pay  the  claims  deserves  to  be  quoted:  "In  my  last  message, 
I  recommended  to  Congress  that  it  authorize  the  payment  of  the 
findings  or  judgments  of  the  Court  of  Claims  in  the  matter  of  the 
French  spoliation  cases.  There  has  been  no  appropriation  to 
pay  these  judgments  since  1905.  The  findings  and  awards  were 
obtained  after  a  very  bitter  fight,  the  Government  succeeding  in 
about  seventy-five  per  cent  of  the  cases.  The  amount  of  the 
awards  ought,  as  a  matter  of  good  faith  on  the  part  of  the  Gov- 
ernment, to  be  paid."  (From  the  message  of  December  21, 


74  LEADING  AMERICAN  TREATIES 

191 1.).  Many  eminent  men  in  public  life  have  favored  the 
payment  of  these  claims.  Among  them  are  James  Madison, 
Edward  Livingston,  DeWitt  Clinton,  Edward  Everett,  Daniel 
Webster,  Caleb  Gushing,  Charles  Francis  Adams,  Rufus  Choate, 
Charles  Sumner,  and  Thomas  B.  Reed. 

The  constitutional  provision  upon  which  their  arguments 
hung  was  the  clause  in  the  fifth  amendment  of  the  Constitution: 
"Nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. " 

The  other  claims  of  Americans  arising  out  of  the  interna- 
tional conflicts  of  that  early  period  in  our  national  history  fared 
better.  The  claims  against  Great  Britain  up  to  1796  were 
settled  by  a  commission  in  accordance  with  Jay's  Treaty.  Henry 
Wheaton  obtained  recognition  and  payment  for  those  against 
Denmark  in  1830.  Those  against  Naples  were  provided  for 
by  the  agreement  of  1832.  Those  against  Holland  for  the  pre- 
emption and  condemnation  of  American  goods  and  ships  within 
her  territorial  waters  during  the  French  occupation  were  at  the 
suggestion  of  the  Dutch  Government  presented  to  France  and 
paid  by  her  under  the  agreement  of  1832.  The  claims  for 
spoliations  under  Napoleon  after  1801  were  presented  for  pay- 
ment by  the  American  minister,  Joel  Barlow,  in  1812,  during 
Napoleon's  Russian  campaign;  and  Barlow  died  on  the  return 
journey  to  Paris.  Gallatin  took  up  the  task  in  1816;  and  William 
C.  Rives  completed  the  negotiations  in  1831.  France  agreed  to 
pay  twenty  five  million  francs,  or  about  one  fifth  of  the  losses 
suffered.  For  several  years  the  Chamber  of  Deputies  refused  to 
appropriate  the  money.  As  a  protest  the  United  States  severed 
diplomatic  relations  by  recalling  the  minister,  Edward  Living- 
ston, from  Paris,  which  was  followed  by  the  withdrawal  of  the 
French  minister,  Pageot,  from  Washington.  Great  Britain 
offered  her  mediation  and  France  took  thereupon  definite  steps  to 
discharge  the  obligations.  The  claims  against  Spain  were  settled 
under  the  Treaty  of  1819  by  which  the  United  States  acquired 
Florida. 


CONVENTION  OF  PEACE,  ETC.,  WITH  FRANCE,  1800      75 

BIBLIOGRAPHY 

ALLEN,  GARDNER W. — Our  Naval  War  with  France,  Boston,  1909. 
American  State  Papers,  Foreign  Relations,  Volumes  I.  and  II.    Washington, 

1832. 

Bibliography  in  Boston  Public  Library  Bulletin,  May,  1885. 
Court  of  Claims  Reports,  Volumes  21  to  50,  Washington,  1886-1915. 
HILL,  FREDERICK  TREVOR. — The  affair  of  X,  Y,  and  Z.    Atlantic  Monthly, 

April,   1914. 
KING,  GEORGE  A. — The   French   Spoliation   Claims.     Senate    Document 

No.  451,  64th  Cong.,  1st.  Session.    Washington,  1916. 
SCOTT,  J.  B. — The  Controversy  over  Neutral  Rights  Between  the  United  States 

and  France,   1797-1800.     New  York,   1917. 
TRESCOT,  W.  H. — Diplomatic  History,  1789-1801.    Boston,  1857. 


CHAPTER  V 
THE  LOUISIANA  PURCHASE,   1803 

"The  instruments  which  we  have  just  signed  will  cause  no  tears  to  be 
shed:  they  prepare  ages  of  happiness  for  innumerable  generations  of  human 
creatures.  The  Mississippi  and  Missouri  will  see  them  succeed  one  another, 
and  multiply,  truly  worthy  of  the  regard  of  Providence,  in  the  bosom  of 
equality,  under  just  laws,  freed  from  the  errors  of  superstition  and  the 
scourges  of  bad  government." — ROBERT  R.  LIVINGSTON. 

The  welfare  of  the  American  settlers  west  of  the  Appala- 
chian Mountains  depended  largely  upon  the  free  navigation  of 
the  Mississippi.  For  example,  the  whiskey  insurrection  in  west- 
ern Pennsylvania  against  Hamilton's  excise  taxes  would  not 
have  occurred  had  the  Ohio  and  the  Mississippi  been  open.  But 
the  tax  made  the  distillation  of  whiskey  unprofitable;  and  the 
cost  of  transporting  the  grain  to  the  eastern  market  consumed 
the  value  of  the  grain.  The  settlers  on  the  Ohio  and  the  trib- 
utaries of  the  Mississippi  fared  worse. 

In  1790  Spain  was  on  the  verge  of  a  rupture  with  Great 
Britain.  Jefferson  thought  the  time  opportune  to  push  the 
question  of  the  right  to  navigate  the  lower  Mississippi.  There- 
upon, President  Washington  nominated  William  Carmichael, 
then  charge  d'affaires  at  Madrid,  and  William  Short,  then 
charge  d'affaires  in  Paris,  as  commissioners  plenipotentiary  to 
negotiate  and  conclude  a  convention. 

These  commissioners  received  instructions  to  insist  upon 
four  main  stipulations  as  a  sine  qua  non  of  a  treaty.  First, 
the  southern  boundary  of  the  United  States  should  remain  at 
31  degrees  latitude  on  the  Mississippi  and  should  follow  the 
line  eastward  as  described  in  the  treaty  of  peace  with  Great 
Britain,  1783.  The  western  boundary  should  follow  the  middle 
of  the  channel  of  the  Mississippi,  no  matter  how  that  channel 
might  vary.  Furthermore,  Spain  should  cease  to  occupy  or  to 
exercise  jurisdiction  within  the  American  boundaries.  Second, 

76 


THE  LOUISIANA  PURCHASE,  1803  77 

Americans  should  have  the  right  to  navigate  the  Mississippi 
in  its  whole  breadth  and  length  from  its  source  to  the  sea,  as 
established  by  the  Treaty  of  1763.  Third,  American  vessels, 
cargoes,  and  persons  on  board  should  not  be  stopped  and  should 
be  free  from  all  dues  whatsoever.  Fourth,  such  rights  should 
be  allowed  Americans  on  the  Spanish  banks  of  the  river  as  to 
make  the  right  of  navigation  practicable.  It  was  included  as 
desirable  that  a  treaty  of  commerce  be  negotiated  providing 
for  free  intercourse  with  the  ports  of  Spain  and  with  those  of 
her  dominions  and  for  the  extradition  of  fugitives  from  justice.1 
The  American  commissioners  met  at  Madrid  early  in  Febru- 
ary, 1793.  Diego  de  Gardoqui  had  been  appointed  the  Spanish 
plenipotentiary.  He  had  acted  in  that  capacity  before  and  had 
repeatedly  refused  the  same  requests  from  the  Americans.  But 
the  event  which  turned  the  tables  against  the  Americans  was  the 
execution  of  Louis  XVI.  Spain  declared  war  against  France. 
The  difficulties  between  Spain  and  Great  Britain  were  adjusted 
and  the  two  entered  into  a  defensive  and  offensive  alliance. 
Nevertheless,  Carmichael  and  Short  proceeded  to  argue  in 
accordance  with  their  instructions  that  Spain  had  ceded  her 
rights  of  navigation  to  Great  Britain  in  1763;  that  in  1783 
Spain  did  not  recall  these  rights  which  had  been  ceded  to  Great 
Britain;  that  in  the  same  year  the  United  States  succeeded 
to  the  rights  of  Great  Britain;  and  that  holding  the  upper 
waters  the  Americans  had  a  right  to  navigate  the  lower.  Gardo- 
qui replied  that  in  accordance  with  international  law  the  state 
which  held  both  banks  at  the  mouth  controlled  the  river 
between  them.  Great  Britain  returned  to  Spain  both  banks  of 
the  Mississippi  with  no  reservation  on  the  right  of  navigation; 
hence  Great  Britain  could  not  cede  the  right  to  the  United 
States.  And  even  if  the  British  did  have  the  right  to  navigate 
the  river  after  1783,  the  Americans  could  not  claim  such  a  right 
because  they  had  lost  their  rights  as  British  subjects  by  declaring 
their  independence.2  The  Americans  carried  their  appeal  to 
Godoy,  the  chief  minister,  but  accomplished  nothing.  Neither 

1  American  State  Papers,  Foreign  Relations,  I.:  252. 
2 Ibid.,  I.:  260. 


78  LEADING  AMERICAN  TREATIES 

could  they  appeal  to  Great  Britain  for  assistance  because  the 
relations  between  the  United  States  and  Great  Britain  could 
hardly  be  said  to  promote  cooperative  efforts  in  the  period 
preceding  Jay's  Treaty. 

A  year  later,  August,  1794,  the  Spanish  minister  to  the 
United  States,  Jaudenes,  intimated  to  Edmund  Randolph  that 
Spain  would  negotiate  with  a  minister  of  proper  "character, 
conduct,  and  splendor. "  So  in  November,  1794,  Thomas  Pinck- 
ney  was  transferred  from  London  to  Madrid.  He  found  the 
first  minister,  Godoy,  anxious  for  delay,  a  natural  course  for 
Spam  held  possession  of  the  subjects  in  controversy.  The  nego- 
tiations were  to  have  begun  hi  June,  1795.  Pinckney  waited 
until  October  24  without  receiving  any  attention.  On  that  day 
he  asked  for  his  passports.  Three  days  later  he  affixed  his 
signature  to  the  first  treaty  between  the  United  States  and  Spam.1 

The  chief  provisions  of  this  treaty  were:  First,  the  boundaries 
to  be  established  in  accordance  with  the  Treaty  of  Paris,  1783, 
that  is,  the  3ist  parallel  and  the  middle  of  the  channel  of  the 
Mississippi.  Second,  the  Mississippi  was  thrown  open  to  Ameri- 
can vessels,  and  New  Orleans  was  made  a  free  port  of  deposit 
and  transhipment  of  American  goods  for  three  years.  The  treaty 
contained  provisions  for  the  establishment  of  a  claims  commis- 
sion, for  a  recognition  of  the  principle  of  free  ships  make  free 
goods,  and  for  the  exclusion  of  naval  stores  and  provisions  from 
the  contraband  list.2 

On  its  face  this  treaty  appeared  to  be  satisfactory,  but  numer- 
ous troubles  arose.  The  commissioners  could  not  agree  on 
the  boundary  line.  Spain  would  not  withdraw  her  troops  from 
American  soil  until  a  decision  should  be  reached  whether  she 
was  to  destroy  the  fortifications  or  not.  And  continuous  annoy- 
ances occurred  hi  connection  with  New  Orleans  as  a  port  of 
deposit. 

During  the  next  five  years  appeared  several  ominous  signs. 
Spain  realized  that  Louisiana  was  a  constant  source  of  expense. 
The  total  receipts  of  the  Spanish  government  at  New  Orleans  hi 

•American  State  Papers,  Foreign  Relations,  I.:  545. 
1  Malloy,    Treaties,   II.:    1640. 


THE  LOUISIANA  PURCHASE,  1803  79 

1801  amounted  to  950,000  livres  and  the  expenditures  to 
2,841,000  livres.1  After  the  Treaty  of  1795  Spanish  commerce 
from  the  port  of  New  Orleans  decreased  while  American  com- 
merce greatly  increased.  In  1794  thirty-one  vessels  from  the 
American  seaboard  cities  entered  the  custom  house  and  only 
twenty- three  barges  from  the  settlements  on  the  Ohio.  In  1799 
seventy-eight  vessels  entered  from  the  American  seaboard  and 
one -hundred  and  eleven  river  boats  from  the  up  river  settle- 
ments.2 To  this  increase  Pinckney's  treaty  and  the  westward 
migration  contributed  their  respective  shares. 

The  Convention  of  1800  between  the  United  States  and 
France  bore  the  date  of  September  30.  On  the  very  next  day, 
October  i,  1800,  France  by  a  secret  treaty  acquired  Louisiana 
from  Spain.  The  treaty  is  known  as  that  of  St.  Ildefonso. 
According  to  it  France  should  procure  "an  aggrandizement"  for 
the  Duke  of  Parma,  the  son  in  law  of  the  King  of  Spain.  This 
aggrandizement  might  consist  of  Tuscany  or  some  other  well 
rounded  state  which  would  increase  his  subjects  to  the  number 
of  one  million.  And  the  duke  was  to  be  given  all  the  rights  of 
royal  dignity  and  the  title  of  king.  Six  months  after  these 
details  had  been  arranged  Spain  agreed  to  deliver  Louisiana  to 
France  "with  the  same  extent  that  it  now  has  in  the  hands  of 
Spain,  and  had  while  in  the  possession  of  France,  and  such  as  it 
ought  to  be  in  conformity  with  the  treaties  subsequently  con- 
cluded between  Spain  and  other  states. "  3 

The  untouched  resources  of  the  Mississippi  and  the  name 
of  Louisiana  appealed  to  the  imagination  of  the  French. 
Napoleon's  ambition  included  the  rebuilding  of  a  colonial  empire. 
In  the  Treaty  of  St.  Ildefonso  he  had  accomplished  the  first  step. 
The  signing  of  the  preliminary  articles  of  peace  at  London 
October  i,  1801,  constituted  the  second  step.  The  third  step 
consisted  in  subjugating  San  Domingo.  That  island  held  the 
key  to  the  rebuilding  of  the  French  colonial  system  in  the  West 
Indies  and  in  Louisiana. 

1  Charming,  IV. :  305,  footnote. 

4  Ibid.,  IV.:  311. 

3  Cantillo,  Tradados  de  Espana,  692;  Malloy,  Treaties,  I.:  506. 


80  LEADING  AMERICAN  TREATIES 

In  1789  the  combined  imports  and  exports  of  the  island 
were  valued  at  more  than  one  hundred  forty  million  dollars, 
mostly  sugar,  coffee,  indigo,  and  cotton.  The  population  num- 
bered six  hundred  thousand;  less  than  forty  thousand  of  these 
were  white;  and  these  held  the  economic  and,  therefore,  the 
social  and  political  control.  Over  five  hundred  thousand  of  the 
negroes  were  held  in  rigid  slavery.  The  plantation  owners  had 
grown  restive  under  pressure  from  two  sources.  One  was  due 
to  the  mercantilism  of  the  French  colonial  system.  Their 
exports  had  to  be  sold  in  France  and  their  imports  had  to  be 
bought  there;  and  all  goods  had  to  be  carried  in  French  bottoms. 
But  the  greatest  source  of  uneasiness  sprang  from  the  jealousy 
of  the  free  mulattoes  who  had  the  conviction  that  a  trifling 
difference  in  blood  or  color  was  an  unreasonable  basis  for  the 
social  barriers.  When  the  French  revolution  came  these  mulat- 
toes claimed  to  own  one  third  of  the  land  and  one  fourth  of  the 
personal  property  and  offered  the  revolutionists  at  home  one 
fifth  of  their  possessions  if  they  could  be  relieved  from  the 
tyranny  of  the  whites.  The  wealthy  Creoles  of  the  island 
preferred  death  to  sharing  power  with  the  inferior  race,  and 
therefore  supported  the  Bourbon  cause.  The  mulattoes  sup- 
ported the  National  Assembly.  Both  parties  supplied  them- 
selves with  arms.  In  the  inevitable  conflict  the  whites  were 
almost  exterminated  with  savage  barbarism  on  a  terrible  night 
in  August,  1791.*"  The  slaves  considered  it  a  part  of  their 
newly  won  freedom  to  commit  whatever  excesses  they  pleased. 

To  add  to  the  turmoil  the  Spaniards  and  the  English 
organized  bands  of  natives  in  the  hope  of  thus  conquering  the 
island.  One  of  these  negroes  in  Spanish  pay  was  destined  for 
leadership  and  for  becoming  the  instrument  of  defeating 
Napoleon's  colonial  ambitions  and,  consequently,  of  paving  the 
way  for  the  acquisition  of  Louisiana  by  the  United  States.  This 
was  Toussaint  Louverture,  born  a  slave  on  the  island  in  1746. 

Toussaint  had  the  same  abnormal  physical  and  mental 
energy  of  Bonaparte;  and  he  was  always  present  where  he  was 
most  needed.  He  deserted  the  Spanish  service,  joined  the 

1  Stoddard,  French  Revolution  in  San  Domingo,  Chapter  XI. 


THE  LOUISIANA  PURCHASE,  1803  8l 

French,  and  quickly  cleared  the  island  of  Spanish  troops.  The 
mulattoes  hated  him  partly  because  he  truckled  to  the  whites 
and  partly  because  of  the  strong  support  he  received  from  the 
former  slaves.  At  times  he  satisfied  the  demands  of  both  the 
whites  and  the  negroes  at  the  expense  of  the  mulattoes.  Within 
two  years,  May,  1797,  he  held  the  military  control  over  the 
whole  colony. 

When  on  June  13,  1798,  the  American  Congress  authorized 
the  suspension  of  commercial  relations  with  France  and  her 
dependencies  Toussaint  saw  that  the  act  meant  a  disturbance 
of  the  economic  comforts  of  his  people  and  possibly  rebellion. 
He  was  the  undisputed  ruler  of  the  island,  owing  only  nominal 
allegiance  to  France.  The  combination  of  fear  and  ambition 
caused  him  to  declare  himself  the  "Bonaparte  of  San  Domingo. " 
He  opened  negotiations  with  the  United  States,  assuring  Presi- 
dent Adams  that  if  commercial  intercourse  were  renewed  Ameri- 
can commerce  would  be  protected  by  every  means  in  his  power. 
Adams  asked  Congress  to  modify  the  law  accordingly  and  sent 
Edward  Stevens  as  consul-general  with  diplomatic  powers  to 
San  Domingo.  Stevens  assisted  in  negotiating  an  agreement, 
June  13,  1799,  between  Maitland,  the  British  representative  on 
the  island,  and  Toussaint.  Adequate  supplies  flowed  in  from  the 
United  States.  By  successfully  laying  siege  to  Jacmel  he  elimin- 
ated the  French  agent  from  the  island.  He  then  assumed  both 
civil  and  military  power;  and  he  issued  a  constitution  by  which 
he  was  to  hold  power  for  life  and  to  name  his  own  successor. 
Bonaparte  had  to  wait  a  year  before  he  could  imitate  this  step 
of  the  ex-slave;  and  he  chafed  under  the  comparison.  Like 
Bonaparte  again,  Toussaint 's  power  became  his  ruin. 

The  Treaty  of  1800  implied  that  the  United  States 
must  recognize  San  Domingo  as  a  French  colony.  Stevens, 
the  consul-general,  foresaw  difficulties  and  resigned  because 
of  ill  health.  Pichou,  the  new  French  representative  in 
Washington,  protested  against  any  recognition  of  Toussaint. 
The  preliminary  peace  of  London  removed  the  protection  which 
the  British  had  given  Toussaint.  "The  gilded  African, "so 
dubbed  by  Napoleon,  was  isolated  diplomatically.  On  Decem- 


82  LEADING  AMERICAN  TREATIES 

her  30,  1801,  Livingston  wrote  from  Paris:  "the  armament,  des- 
tined in  the  first  instance  for  Hispaniola,  is  to  proceed  to  Louis- 
iana, provided  Toussaint  makes  no  opposition."  *  Napoleon 
intrusted  the  command  of  this  armament  to  his  brother  in  law, 
Leclerc. 

Leclerc  arrived  with  his  ten  thousand  in  San  Domingo  in 
the  latter  part  of  January,  1802.  As  instructed  by  Bonaparte, 
he  stated  in  his  first  proclamation:  "If  you  are  told  that  these 
forces  are  destined  to  ravish  your  liberty,  answer:  The  Republic 
has  given  us  liberty,  the  Republic  will  not  suffer  it  to  be  taken 
from  us."  Bonaparte  honored  his  victim  with  a  personal 
letter  in  which  he  both  flattered  and  threatened  and  closed  with 
the  following:  "Assist  the  Captain-General  with  your  counsels, 
your  influence,  and  your  talents.  What  can  you  desire? — the 
liberty  of  the  blacks?  You  know  that  in  all  the  countries  where 
we  have  been,  we  have  given  it  to  the  peoples  who  had  it  not. "  8 

Toussaint  knew  intuitively  Leclerc's  mission.  He  offered 
the  ablest  resistance  possible.  In  less  than  three  months  he 
swept  away  one  French  army  and  destroyed  the  industry  of  the 
island;  the  latter  feat  was  an  asset  as  a  defensive  measure, 
but  it  was  also  demoralizing  to  his  followers.  Several  of  his 
generals  surrendered  abjectly.  And  finally,  Toussaint,  betrayed 
on  all  sides  committed  the  mistake  of  his  life  and  surrendered, 
relying  upon  the  honor  of  his  captor.  He  died  a  captive  in  the 
fortress  of  Joux,  near  Besanc.on.  Bonaparte  directed  the  Min- 
ister of  Marine  to  issue  an  order  restoring  the  negroes  to  slavery 
and  to  prepare  plans  for  the  occupation  of  Louisiana. 

Leclerc  expelled  the  American  consul,  Lear,  from  the  island, 
and  condemned  American  ships  that  carried  supplies  to  the 
opposing  forces.  These  events  together  with  the  rumors  about 
Louisiana  made  Jefferson  suspicious.  But  Leclerc  was  to  meet  a 
new  foe.  Toussaint  had  disposed  of  17,000  French  soldiers. 
The  yellow  fever  killed  7,000  more  and  struck  an  insidious  terror 
into  the  entire  French  army.  Leclerc  sent  such  despatches  as 

•American  State  Papers,  Foreign  Relations,  II.:  512. 
•Adams,  History  of  Ike  U.  S.,  I.:  392. 
'Ibid.,  I.:  393- 


THE  LOUISIANA  PURCHASE,  1803  83 

these:  "Sacrifice  six  million  francs  at  this  time,  Citizen  Consul, 
that  you  may  not  have  to  spend  sixty  millions  in  the  spring. " 
"The  rebellion  grows,  the  disease  continues."  "I  can  reduce  the 
the  negroes  only  by  force — and  for  this  I  must  have  an  army  and 
money."  "These  men  may  be  killed,  but  will  not  surrender. 
They  laugh  at  death;  and  it  is  the  same  with  the  women." 
"You  will  never  subdue  San  Domingo  without  an  army  of 
twelve  thousand  acclimated  troops  besides  the  gendarmerie; 
and  you  will  not  have  this  army  until  you  have  sent  seventy 
thousand  men  to  San  Domingo. "  Flushed  with  the  fever  which 
shortly  took  his  life,  Leclerc  penned  in  his  last  despatch,  October 
7,  1802:  "We  must  destroy  all  the  mountain  negroes,  men  and 
women,  sparing  only  children  under  twelve  years  of  age.  We 
must  destroy  half  the  negroes  of  the  plains,  and  not  allow  in  the 
colony  a  single  man  who  has  worn  an  epaulette.  Without 
these  measures  the  colony  will  never  be  at  peace. "  l  Napoleon 
had  already  decided  to  abandon  San  Domingo. 

The  news  of  Leclerc's  death  and  of  the  Spanish  intendant's 
order  denying  the  Americans  the  right  of  deposit  at  New  Orleans 
reached  Washington  about  the  same  time.  The  first  indicated 
a  halt  in  Napoleon's  ambitions.  The  second  was  taken  as  a 
foretaste  of  what  France  would  do.  The  ability  of  the  French 
to  control  the  Indians  made  Claiborne  and  the  settlements  along 
the  Mississippi  uneasy.  Kentucky  and  Tennessee  wanted  war 
before  Napoleon  could  fortify  himself  at  New  Orleans. 

Jefferson  wrote  to  Robert  R.  Livingston,  the  American  min- 
ister in  Paris  on  April  18,  1802:  "The  cession  of  Louisiana  and 
the  Floridas  by  Spain  to  France,  works  most  sorely  on  the  United 
States.  On  this  subject  the  Secretary  of  State  has  written  to  you 
fully,  yet  I  cannot  forbear  recurring  to  it  personally,  so  deep  is 
the  impression  it  makes  on  my  mind.  It  completely  reverses  all 
the  political  relations  of  the  United  States,  and  will  form  a  new 
epoch  in  our  political  course.  Of  all  nations  of  any  considera- 
tion, France  is  the  one  which,  hitherto,  has  offered  the  most 
points  of  a  communion  of  interests.  From  these  causes,  we  have 
ever  looked  to  her  as  our  natural  friend,  as  one  with  which  we 
1  Stoddard,  The  French  Revolution  in  San  Domingo,  334,  335,  342. 


84  LEADING  AMERICAN  TREATIES 

never  could  have  an  occasion  of  difference.  Her  growth, 
therefore,  we  viewed  as  our  own,  her  misfortunes  ours.  There 
is  on  the  globe  one  single  spot,  the  possessor  of  which  is 
our  natural  and  habitual  enemy.  It  is  New  Orleans,  through 
which  the  produce  of  three-eighths  of  our  territory  must  pass  to 
market,  and  from  its  fertility  it  will  ere  long  yield  more  than  half 
of  our  whole  produce,  and  contain  more  than  half  of  our  inhabit- 
ants. France,  placing  herself  in  that  door,  assumes  to  us  the 
attitude  of  defiance. — The  day  that  France  takes  possession  of 
New  Orleans,  fixes  the  sentence  which  is  to  restrain  her  forever 
within  her  low-water  mark.  It  seals  the  union  of  two  nations, 
who,  in  conjunction,  can  maintain  exclusive  possession  of  the 
ocean.  From  that  moment,  we  must  marry  ourselves  to  the 
British  fleet  and  nation. "  In  the  same  letter  Jefferson  instructed 
Livingston  to  broach  to  Napoleon  the  subject  of  the  possible 
purchase  by  the  United  States  of  "  the  island  of  New  Orleans  and 
theFloridas."1 

Early  in  1803  Congress  authorized  the  President  to  direct  the 
governors  to  call  out  80,000  militiamen  and  to  hold  them  in 
readiness.  Congress  appropriated  $2,000,000  for  the  purchase 
of  the  island  of  Orleans  and  adjacent  lands.  A  considerable 
number  of  congressmen  wanted  to  seize  New  Orleans  outright 
and  appropriate  $15,000,000  for  contingencies,  but  the  moderate 
policy  of  Jefferson  prevailed.  Moreover,  Livingston  reported 
that  Talleyrand  had  assured  him  that  in  Louisiana  France  would 
strictly  observe  the  treaties  existing  between  the  United  States 
and  Spain.  This  report  had  a  quieting  effect  upon  the  members 
of  the  two  houses  and  especially  upon  those  from  Kentucky  and 
Tennessee. 

In  order  to  palliate  the  opposition  President  Jefferson  nomi- 
nated James  Monroe  as  minister  extraordinary  to  aid  Livingston 
in  buying  New  Orleans  and  the  Floridas.  The  Senate  confirmed 
the  nomination.  And  Jefferson  wrote  to  Monroe  January  13, 
1803:  "The  measure  has  already  silenced  the  Federalists  here. 
Congress  will  no  longer  be  agitated  by  them;  and  the  country 
will  become  calm  as  fast  as  the  information  extends  over  it. 
'Jefferson,  Works,  IV.:  431. 


THE  LOUISIANA  PURCHASE,  1803  85 

All  eyes,  all  hopes,  are  fixed  on  you;  and  were  you  to  decline, 
the  chagrin  would  be  universal,  and  would  shake  under  your  feet 
the  high  ground  on  which  you  stand  with  the  public. "l  Monroe 
was  appointed  for  the  purpose  of  restoring  political  quiet  at 
home  rather  than  for  the  purpose  of  being  of  any  material  aid 
to  Livingston  in  negotiating  the  purchase.  And  Jefferson  had  so 
explained  in  a  letter  to  Livingston  on  February  3,  1803. 

Monroe  accepted  the  appointment.  But  not  until  March 
2,  1803,  when  he  was  about  to  sail,  did  he  receive  the  instruc- 
tions.2 For  New  Orleans  and  West  Flordia,  Monroe  and  Living- 
ston could  offer  any  amount  up  to  $10,000,000.  French  citizens, 
vessels,  and  merchandise  should  be  treated  for  ten  years  in  this 
ceded  territory  on  the  same  basis  as  American  citizens,  vessels, 
and  merchandise;  thereafter,  the  most  favored  nation  principle 
should  apply  to  the  French.  Frenchmen  might  have  the  right 
of  deposit  at  New  Orleans  for  ten  years.  The  admission  of  the 
inhabitants  to  American  citizenship  would  have  to  be  left  to 
Congress,  but  Monroe  and  Livingston  could  give  the  assurance 
that  this  would  be  done  without  unnecessary  delay.  The 
navigation  of  the  Mississippi  below  the  thirty-first  parallel  was 
to  be  free  to  the  vessels  and  citizens  of  both  parties,  but  "no 
other  nation  shall  be  allowed  to  exercise  commerce  to  or  at  the 
same,  or  any  other  place  on  either  shore  below  the  said  thirty- 
first  degree  of  latitude  for  the  term  of  ten  years. "  The  object  of 
this  provision  was  to  give  France  the  advantage  over  Englishmen 
and  their  vessels  in  the  navigation  of  the  river.  There  was 
no  intention  on  the  part  of  the  United  States  to  cancel  Great 
Britain's  right  under  the  Treaty  of  1783  to  navigate  the  river 
above  the  thirty-first  degree  parallel.  If  France  were  to  insist 
that  her  part  of  the  cession  from  Spain  be  guaranteed  to  her, 
then  Monroe  and  Livingston  might  as  a  last  resort  acquiesce. 
If  France  were  disposed  to  sell  only  a  part,  then  "the  Floridas, 
together,  are  estimated  at  one  fourth  the  value  of  the  whole 
island  of  New  Orleans,  and  East  Florida  at  half  that  of  West 
Florida." 

1  Jefferson,  Writings,  VIII.:  190. 

2  American  State  Papers,  Foreign  Relations,  II.:  540 


86  LEADING  AMERICAN  TREATIES 

Monroe  sailed  on  March  8,  1803.  Spain  had  not  yet  de- 
livered Louisiana  to  France.  A  few  days  later  the  Spanish 
minister,  the  Marquis  of  Casa  Yrujo,  informed  Secretary  of 
State  Madison  that  the  American  right  of  deposit  at  New 
Orleans  would  be  immediately  restored.  This  removed  the 
anxiety  of  the  American  settlers  along  the  Ohio  and  the  Mississ- 
ippi. 

Napoleon's  expedition  to  Louisiana  was  to  have  sailed  in  the 
latter  part  of  September,  1802.  Marshal  Victor  had  been  given 
command.  Laussat  was  to  be  prefect.  The  instructions  to 
Victor  gave  the  boundaries:  "The  extent  of  Louisiana  is  well 
determined  on  the  south  by  the  Gulf  of  Mexico.  But  bounded 
on  the  west  by  the  river  called  Rio  Bravo  from  its  mouth  to 
about  thirty  degrees  parallel,  the  line  of  demarcation  stops 
after  reaching  this  point,  and  there  seems  never  to  have  been  any 
agreement  in  regard  to  this  part  of  the  frontier." — "There  also 
exists  none  between  Louisiana  and  Canada. "  *  But  the  most 
important  part  of  the  boundary  was  that  to  the  east  of  New 
Orleans.  The  instructions  to  Victor  quoted  from  the  treaty  of 
1763  by  which  Spain  ceded  Florida  to  Great  Britain.  Article 
VII  of  that  treaty  drew  the  boundary  down  the  middle  of  the 
Mississippi  to  the  river  Iberville,  and  from  that  point  down  the 
middle  of  the  river  Iberville  and  of  the  lakes  Maurepas  and 
Pontchartrain  to  the  sea.  This  gave  New  Orleans  and  the  island 
on  which  it  stood  to  France.  The  Iberville  became,  then, 
the  eastern  boundary  of  Louisiana.  True  Napoleon  had 
bargained  urgently  with  Charles  IV.  of  Spain  to  have  the 
Floridas  turned  over  together  with  Louisiana  and  had  offered 
Parma,  Piacenza,  and  Guastalla;  but  Charles  IV.  refused  and 
the  Spanish  minister,  Godoy,  would  not  permit  the  matter  to 
be  reopened. 

Laussat  reached  Louisiana,  but  Marshal  Victor  never  did. 
Napoleon's  plans  for  reviving  the  French  colonial  empire  had 
gone  aground  in  San  Domingo.  He. looked  around  for  some 
dramatic  enterprise  under  cover  of  which  he  might  withdraw 
from  a  policy  dear  to  the  French.  On  March  12,  1803,  Living- 
1  Adams,  History  of  the  United  States,  II.:  6. 


THE  LOUISIANA  PURCHASE,  1803  87 

ston  witnessed  a  scene  in  Josephine's  drawing  room  which  left 
no  doubt  as  to  its  meaning.  Napoleon  said  to  the  British 
ambassador,  Lord  Whitworth:  "I  find,  my  Lord,  your  nation 
wants  war  again."  "No  sir,  we  are  very  desirous  of  peace" 
replied  Whitworth.  "I  must  either  have  Malta  or  war"  1 
rejoined  the  First  Consul.  In  the  consequent  alarm  that  spread 
throughout  Europe,  San  Domingo  and  French  colonial  ambitions 
were  forgotten.  And  it  did  not  enter  the  thoughts  of  Americans 
that  they  might  owe  considerable  to  the  dusky  Toussaint  and 
his  five  hundred  thousand  negroes  who  had  fought  desperately 
for  freedom. 

While  Monroe  was  still  on  the  ocean,  Napoleon  consulted 
with  Talleyrand  about  selling  Louisiana  to  the  United  States. 
Talleyrand  did  not  approve.  Napoleon  consulted,  thereupon, 
with  his  minister  of  finance,  Barbe  Marbois,  who  made  his 
opinion  that  of  his  master.  On  Easter  Sunday,  April  10,  1803, 
Monroe  left  Havre  for  Paris.  On  that  same  Sunday  Napoleon 
attended  religious  services  at  St.  Cloud.  That  afternoon  he 
had  a  conference  with  Marbois.  He  feared  Great  Britain  would 
seize  Louisiana  as  the  first  act  of  war;  and  he  proposed  to  cede 
it  to  the  United  States.  "I  can  scarcely  say  that  I  cede  it  to 
them,  for  it  is  not  yet  in  our  possession.  If,  however,  I  leave  the 
least  time  to  our  enemies,  I  shall  only  transmit  an  empty  title 
to  those  republicans  whose  friendship  I  seek.  They  only  ask 
of  me  one  town  in  Louisiana;  but  I  already  consider  the  colony 
as  entirely  lost;  and  it  appears  to  me  that  in  the  hands  of  this 
growing  Power  it  will  be  more  useful  to  the  policy,  and  even  to 
the  commerce,  of  France  than  if  I  should  attempt  to  keep  it. " 

The  next  day,  Monday,  April  n,  at  daybreak,  Napoleon 
summoned  Marbois:  "It  is  not  only  New  Orleans  that  I  cede; 
it  is  the  whole  colony  without  any  reservation.  Do  not  even 
await  the  arrival  of  Mr.  Monroe;  have  an  interview  this  very 
day  with  Mr.  Livingston. "  3  Curiously  enough,  it  was  not 
Marbois  who  approached  Livingston  that  day  but  the  astute 

1  American  State  Papers,  Foreign  Relations,  II. :  547. 

2  Marbois,  History  of  Louisiana:  264. 

3  Ibid.,  274. 


88  LEADING  AMERICAN  TREATIES 

Talleyrand.  In  a  letter  of  April  u,  1803,  Livingston  reported 
the  interview  to  Madison:  "M.  Talleyrand  asked  me  this  day, 
when  pressing  the  subject,  whether  we  wished  to  have  the  whole 
of  Louisiana.  I  told  him  no;  that  our  wishes  extended  only  to 
New  Orleans  and  the  Floridas;  that  the  policy  of  France,  how- 
ever, should  dictate  (as  I  had  shown  in  an  official  note)  to  give 
us  the  country  above  the  River  Arkansas,  in  order  to  place  a 
barrier  between  them  and  Canada.  He  said  that  if  they  gave 
New  Orleans  the  rest  would  be  of  little  value,  and  that  he  would 
wish  to  know  'what  we  would  give  for  the  whole.'  I  told  him 
it  was  a  subject  I  had  not  thought  of,  but  that  I  supposed  we 
should  not  object  to  twenty  million  francs,  provided  our  citizens 
were  paid.  He  told  me  that  this  was  too  low  an  offer,  and  that 
he  would  be  glad  if  I  would  reflect  upon  it  and  tell  him  tomorrow. 
I  told  him  that  as  Mr.  Monroe  would  be  in  town  in  two  days,  I 
would  delay  my  further  offer  until  I  had  the  pleasure  of  intro- 
ducing him."  l 

Livingston  became  insatiably  anxious  to  reap  the  fruits  of 
his  labors  alone,  without  the  assistance  of  Monroe.  For  hours 
he  waited  his  opportunity  to  see  Talleyrand;  and  when  he  did 
succeed,  that  Prince  assumed  a  coy  attitude.  "He  told  me  he 
would  answer  my  note,"  wrote  Livingston  to  Madison  "but 
that  he  must  do  it  evasively,  because  Louisiana  was  not  theirs. 
I  smiled  at  this  assertion,  and  told  him  that  I  had  seen  the 
treaty  recognizing  it. — He  still  persisted  that  they  had  it  in 
contemplation  to  obtain  it,  but  had  it  not. "  2 

Monroe  had  arrived  at  St.  Germain  late  Monday  night; 
and  within  an  hour  after  Livingston's  interview  with  Talleyrand 
came  a  note  announcing  that  Monroe  would  wait  upon  Living- 
ston that  night,  Tuesday,  April  12,  1803.  On  the  afternoon 
of  April  13,  Livingston  gave  a  dinner  party  in  honor  of  Monroe. 
Marbois  came  and  Livingston  told  him  the  news  about  Louisiana. 
Marbois  said  he  had  further  information  and  asked  Livingston  to 
call  after  the  dinner  party  was  over.  No  sooner  had  Monroe 
gone  than  Livingston  sought  out  Marbois.  And  in  a  conversa- 

1  American  State  Papers,   Foreign   Relations,  II.:  552. 
*  Ibid.,  II:   553. 


THE  LOUISIANA  PURCHASE,  1803  89 

tion  which  lasted  till  after  midnight  the  bargain  was  virtually 
made;  the  first  price  mentioned  by  Marbois  was  125,000,000 
francs.  Eager  as  Livingston  may  have  been,  yet  he  professed 
that  the  United  States  did  not  want  territory  beyond  the  Miss- 
issippi, that  it  was  New  Orleans  and  the  Floridas  that  the  Ameri- 
cans wanted.  Marbois  asked  how  much  Livingston  could  give 
for  the  whole  of  Louisiana.  Livingston  replied  that  the  United 
States  could  not  and  would  not  give  a  large  sum.  Both  played 
the  fencing  game  awhile  longer.  Finally  Marbois  dropped  from 
125,000,000  francs  to  80,000,000  francs.  Livingston  told  him 
that  this  was  greatly  beyond  the  means  of  the  United  States; 
but  on  leaving  he  promised  that  if  the  amount  were  made 
considerably  less  he  would  consult  Monroe. 

The  exhilaration  of  buying  an  empire  kept  Livingston  from 
going  to  sleep.  Instead,  he  wrote  a  long  despatch  to  Madison 
in  which  occurred  the  following:  "The  field  open  to  us  is  infinitely 
larger  than  our  instructions  contemplated,  the  revenue  increas- 
ing, and  the  land  more  than  adequate  to  sink  the  capital, 
should  we  even  go  the  sum  proposed  by  Marbois, — nay,  I 
persuade  myself  that  the  whole  sum  may  be  raised  by  the  sale 
of  the  territory  west  of  the  Mississippi,  with  the  right  of  sover- 
eignty, to  some  power  in  Europe  whose  vicinity  we  should  not 
fear.  I  speak  now  without  reflection  and  without  having  seen 
Mr.  Monroe,  as  it  was  midnight  when  I  left  the  Treasury  Office, 
and  it  is  now  near  three  o'clock.  It  is  so  very  important  that 
you  should  be  apprised  that  a  negotiation  is  actually  opened, 
even  before  Mr.  Monroe  has  been  presented,  in  order  to  calm 
the  tumult  which  the  news  of  war  will  renew,  that  I  have  lost 
no  time  in  communicating  it.  We  shall  do  all  we  can  to  cheapen 
the  purchase;  but  my  present  sentiment  is  that  we  shall  buy. "  * 

During  the  next  two  weeks  Livingston  did  his  utmost  to 
reduce  the  amount.  The  first  step  toward  breaking  the  dead- 
lock appears  to  have  been  taken  by  the  First  Consul  himself, 
who  on  April  23  drew  up  a  project  of  a  secret  convention. 
This  project  specified  that  the  whole  of  Louisiana  should  be 
ceded,  that  French  commerce  should  enjoy  all  the  rights  of 
American  State  Papers,  Foreign  Relations,  II.:  554. 


90  LEADING  AMERICAN  TREATIES 

American  commerce  within  Louisiana,  that  the  United  States 
should  allow  the  French  six  perpetual  ports  of  deposit  along 
the  Mississippi;  that  the  United  States  should  assume  all  the 
debts  due  to  American  citizens  under  the  second  and  fifth 
articles  of  the  Convention  of  1800;  and  that  the  United  States 
should  pay  100,000,000  francs  to  France.1 

Marbois  presented  this  project,  but  he  was  quite  willing 
to  substitute  for  it  one  of  his  own  which  he  thought  Napoleon 
would  accept.2  Thereupon,  Livingston  attempted  to  have  the 
claims  of  the  Americans  settled  by  a  separate  convention,  but 
Monroe  did  not  approve  of  the  plan.  They  then  took  up  Mar- 
bois' project  and  each  one  of  the  American  Commissioners 
drew  a  draft  of  his  own,  and  each  thought  the  other's  was  a  poor 
one.  The  two  agreed  at  last  on  the  amount  the  United  States 
could  pay;  fifty  million  to  France  and  twenty  million  to  Ameri- 
can citizens  for  claims  against  France.  Marbois  replied  that 
the  negotiations  would  proceed  only  when  the  Americans  had 
decided  to  accept  eighty  million  francs  as  the  price.  Liv- 
ingston yielded  and  Monroe  did  so  readily.  This  occurred  on 
April  29. 

All  the  documents  in  the  treaty  bear  the  date  of  April  30, 
1803,  but  the  treaty  of  cession  was  not  actually  signed  till  May  2,3 
and  the  agreement  on  the  American  claims  not  till  May  8  or  9. 
The  negotiations  appear  to  have  been  highly  informal.  No 
protocol  was  kept.  And  the  writings  of  Monroe  and  Livingston 
furnish  evidence  that  haste  marked  the  close  of  the  proceedings. 

The  introductory  article  to  the  treaty  mentions  that  the 
motive  is  "  to  remove  all  source  of  misunderstanding  relative  to 
objects  of  discussion  mentioned  in  the  second  and  fifth  articles 
of  the  Convention  of  the  30  September  1800  relative  to  the  rights 
claimed  by  the  United  States  in  virtue  of  the  treaty  concluded  at 
Madrid  the  27  of  October,  1795.—  ".  With  the  second  article 
of  the  convention  of  1800  the  treaty  of  1803  had  nothing  whatso- 
ever to  do. 

1  Adams,  History  of  the  United  State,  II.:  40. 
•Monroe,  Writings,  IV.:  12. 
'Ibid.,  IV.:  17. 


THE  LOUISIANA  PURCHASE,  1803  91 

Article  I  contains  a  quotation  from  the  Treaty  of  St.  Ilde- 
fonso  which  constitutes  the  only  description  of  the  territory 
conveyed,  namely:  "His  Catholic  Majesty  promises  and 
engages  on  his  part  to  cede  to  the  French  Republic  six  months 
after  the  full  and  entire  execution  of  the  conditions  and  stipula- 
tions herein  relative  to  his  Royal  Highness  the  Duke  of  Parma, 
the  Colony  or  Province  of  Louisiana  with  the  same  extent  that 
it  now  has  in  the  hands  of  Spain,  and  that  it  had  when  France 
possessed  it;  and  such  as  it  should  be  after  the  Treaties  subse- 
quently entered  into  between  Spain  and  other  States. " 

Livingston  and  Monroe  had  been  instructed  to  obtain  Florida, 
but  neither  of  the  Floridas  was  included  in  the  purchase.  In- 
stead, they  had  acquired  an  area  of  vast  but  unknown  dimensions 
to  the  west  of  the  Mississippi.  The  American  commissioners 
insisted  at  first  upon  defining  the  boundaries.  Marbois  took 
the  matter  up  with  Napoleon,  who  replied:  "If  an  obscurity 
did  not  already  exist,  it  would  perhaps  be  good  policy  to  put  one 
there. "  He  concealed  a  boundary  which  he  had  made  definite 
in  his  orders  to  Marshal  Victor.  Livingston  asked  Marbois  for 
these  orders  and  for  those  given  by  Spam  to  the  governors  of 
Louisiana.  Neither  was  forthcoming.  He  then  called  on  Talley- 
rand. 

"What  are  the  eastern  bounds  of  Louisiana?"  asked  Living- 
ston. 

"I  do  not  know"  replied  Talleyrand. 

"  But  what  did  you  mean  to  take  from  Spain?  " 

"I  do  not  know." 

"Then  you  mean  that  we  shall  construe  it  our  own  way?" 

"I  can  give  you  no  direction.  You  have  made  a  noble 
bargain  for  yourselves,  and  I  suppose  you  will  make  the  most 
of  it."  l 

Napoleon  and  Talleyrand's  cryptic  replies  probably  meant 
that  Spam  in  their  estimation  was  already  foredoomed  to  be 
conquered  by  the  French  and  that  what  might  happen  to  the 
Floridas  so  long  as  Great  Britain  did  not  get  them  mattered 
little.  Livingston  reported:  "I  asked  him  (Marbois)  in  case  of 
1  American  State  Papers,  Foreign  Relations,  II.:  561. 


92  LEADING  AMERICAN  TREATIES 

purchase,  whether  they  would  stipulate  that  France  would 
never  possess  the  Floridas,  and  that  she  would  aid  us  to  procure 
them,  and  relinquish  all  right  which  she  might  have  to  them. 
He  told  me  that  she  would  go  thus  far. "  l  Napoleon  gave  a  few 
days  later  oral  assurance  to  the  same  effect.  This  much  is 
definite;  both  parties  realized  that  the  Floridas  were  not 
included  in  the  sale.2 

But  Livingston  shortly  convinced  himself  and  Jefferson,  too, 
by  a  piece  of  sophistry  that  West  Florida  had  been  included 
in  the  purchase.  He  reasoned  that  France  had  once  owned 
nearly  all  of  North  America,  and  that  the  province  of  Louisiana 
included  the  Ohio  and  all  the  other  rivers  between  the  Great 
Lakes  and  the  Gulf;  hence,  West  Florida  as  well.  This  held 
true  until  the  Treaty  of  Paris,  1763,  when  France  ceded  to  Great 
Britain  all  of  Quebec,  the  region  around  the  Great  Lakes  and  all 
of  her  claims  to  the  land  to  the  east  of  the  Mississippi,  Florida 
included,  but  with  the  exception  of  the  Island  of  New  Orleans. 
Almost  simultaneously  France  ceded  to  Spain  all  of  her  claims 
to  the  west  of  the  Mississippi.  In  1783  the  Floridas  again 
became  Spanish.  So  that  at  St.  Ildefonso,  when  Spain  receded 
Louisiana  to  France  "  with  the  same  extent  that  it  now  has  in  the 
hands  of  Spain,  and  that  it  had  when  France  possessed  it, — 
no  one  could  deny  that  Spain  had  the  right  and  the  power  to 
include  West  Florida;  and  apparently  she  had  exercised  that 
power.  Spain,  without  knowing  it,  then,  had  receded  West 
Florida  to  France;  France,  without  exacting  any  pay  for  it,  had 
implicitly  sold  it  to  the  United  States.  All  that  the  United 
States  had  to  do  was  to  step  in  and  take  possession.  On  May  20, 
1803,  Livingston  wrote  to  Secretary  Madison:  "Now,  it  is  well 
known  that  Louisiana  as  possessed  by  France,  was  bounded  by 
the  river  Perdido,  and  that  Mobile  was  the  metropolis. "  And 
he  continued:  "  Now  sir,  the  sum  of  this  business  is  to  recommend 
to  you  in  the  strongest  terms,  after  having  obtained  the  pos- 
session that  the  French  commissary  will  give  you,  to  insist 
upon  this  as  part  of  your  right,  and  to  take  possession  at  all 

'American  State  Papers,  Foreign  Relations,  II.:  553. 
'Ibid.,  II.:  558. 


THE  LOUISIANA  PURCHASE,  1803  93 

events  to  the  river  Perdido.  I  pledge  myself  that  your  right  is 
good."1 

Jefferson  wrote  to  Breckinridge,  August  12,  1803:  "We  have 
some  claims,  to  extend  on  the  seacoast  westwardly  to  the  Rio 
Norte  or  Bravo,  and  better,  to  go  eastwardly  to  the  Rio  Perdido, 
between  Mobile  and  Pensacola,  the  ancient  boundary  of  Louis- 
iana. These  claims  will  be  a  subject  of  negotiation  with  Spain, 
and  if,  as  soon  as  she  is  at  war,  we  push  them  strongly  with  one 
hand,  holding  out  a  price  in  the  other,  we  shall  certainly  obtain 
the  Floridas,  and  all  in  good  time. "  2 

The  second  paragraph  of  the  first  article  asserted  that  by 
Article  III  of  the  Treaty  of  St.  Ildefonso  "  the  French  Republic 
has  an  incontestable  title  to  the  domain  and  to  the  possession 
of  said  territory; "  and  that  the  First  Consul  ceded  the  whole  ter- 
ritory in  full  sovereignty  to  the  United  States.  The  American 
commissioners  and  apparently  Marbois  knew  nothing  of  the 
pledge  which  Napoleon  through  his  minister  in  Madrid,  General 
St.  Cyr,  had  made  that  France  would  never  alienate  Louisiana 
except  to  Spain.  Nor  did  it  concern  the  American  negotiators 
that  Napoleon  afterward  ratified  the  treaty  without  the  consent 
of  the  legislative  chambers  and  therefore  omitted  a  requirement 
of  the  French  Constitution.  The  American  title  to  the  territory 
was  never  questioned  on  that  ground. 

Article  II  provided  for  the  transfer  of  public  property  and  the 
archives. 

By  Article  III  the  United  States  promised  to  incorporate 
the  inhabitants  of  the  ceded  territory  and  admit  them  "as  soon 
as  possible  according  to  the  principles  of  the  Federal  Constitu- 
tion to  the  enjoyment  of  all  the  rights,  advantages  and  immuni- 
ties of  citizens  of  the  United  States. "  No  separate  act  of  Con- 
gress was  thought  necessary  to  execute  this  provision;  the 
people  of  Louisiana  by  the  above  clause  became  citizens  of  the 
United  States. 

Articles  IV  and  V  provided  for  the  delivery  of  the  territory 
by  France  to  the  United  States.  The  treaty  was  proclaimed  on 

1  American  State  Papers,  Foreign  Relations,  II.:  561. 

2  Jefferson,  Works,  IV.:  499. 


04  LEADING  AMERICAN  TREATIES 

October  21,  1803;  but  not  until  November  30  was  the  Spanish 
flag  hauled  down  at  New  Orleans  and  the  tri-color  of  France 
hoisted  in  its  place.  For  twenty  days  did  Louisiana  remain 
under  the  jurisdiction  of  France  with  Laussat  as  governor.  His 
act  of  greatest  consequence  consisted  in  the  reestablishment  of 
the  French  legal  system.  On  December  20,  1803,  Governor 
Claiborne  and  General  Wilkinson  took  over  the  province  for  the 
United  States. 

Article  VI  stipulated  that  the  United  States  would  observe 
the  treaties  entered  into  between  Spain  and  the  Indians  until  the 
United  States  and  the  tribes  could  make  other  agreements. 

Article  VII  secured  to  French  ships  coming  directly  from 
France  or  her  colonies  and  laden  with  French  products  and 
similarly  Spanish  ships  coming  directly  from  Spam  or  her  col- 
onies and  laden  with  Spanish  products  the  right  to  enter  the  port 
of  New  Orleans  and  all  other  ports  of  entry  in  the  ceded  territory 
for  a  period  of  twelve  years  on  the  same  basis  as  American  ships 
and  merchandise.  The  commerce  of  no  other  foreign  country 
was  to  enjoy  these  privileges.  Article  VIII  provided  that  after 
the  twelve  year  period  the  commerce  of  France  should  revert 
to  the  most  favored  nation  basis. 

Article  IX  stipulated  that  the  convention  providing  for  the 
payment  of  debts  due  American  citizens  under  Article  V  of  the 
Convention  of  1800  was  approved  as  if  it  had  been  a  part  of  the 
treaty.  Article  X  provided  for  ratification.  The  treaty  was  signed 
by  Robert  R.  Livingston,  James  Monroe,  and  Barbe  Marbois. 

Another  convention  was  entered  into  providing  for  the  pay- 
ment of  sixty  million  francs  by  the  United  States.  For  this 
purpose  the  United  States  should  issue  bonds  to  the  extent  of 
$i  i  ,250,000  bearing  interest  at  six  per  cent.  The  initial  payment 
of  the  bonds  was  to  be  made  fifteen  years  after  the  exchange  of 
ratifications  and  the  amount  should  not  be  less  than  three 
million  dollars;  and  the  payments  were  to  continue  annually 
thereafter. 

A  third  convention  provided  for  the  payment  of  not  to  exceed 
twenty  million  francs  by  the  United  States  to  be  applied  to 
debts  due  by  France  to  citizens  of  the  United  States  as  under 


THE  LOUISIANA  PURCHASE,  1803  95 

the  Convention  of  September  30,1800.  This  sum  could  be  applied 
to  the  debts  specified  in  Article  V  of  the  Convention  of  1800, 
which  did  not  include  any  prizes  condemned,  or  any  indemnities 
claimed  on  account  of  captures  or  confiscations,  nor  did  it 
include  the  claims  of  Americans  who  had  houses  of  business 
outside  the  United  States  or  who  had  entered  into  partnerships 
with  foreigners.  The  sum  did  apply  to  claims  for  the  delay  of 
ships  and  goods  captured,  but  which  the  French  council  of 
prizes  had  ordered  restored;  and  it  applied  to  debts  contracted 
by  France  with  American  citizens. 

Twenty  million  francs,  or  $3,750,000,  did  not  cover  the 
legitimate  claims  of  American  citizens  by  more  than  a  fraction. 
No  rule  of  apportionment  was  provided,  consequently  only  the 
favored  could  be  paid,  which  caused  a  great  deal  of  criticism  of 
Livingston  on  the  part  of  those  who  received  nothing.  In 
addition  the  method  of  determining  a  claim  and  the  mode  of  pay- 
ment clouded  the  reputation  of  Livingston  and  even  that  of  his 
successor,  General  Armstrong.  According  to  Article  VI  of  this 
claims  convention  the  American  minister  in  Paris  should  desig- 
nate three  persons  to  examine,  without  removing  the  documents, 
all  the  accounts  of  the  different  claims.  And  when  these  three 
persons  should  declare  that  the  debt  was  due  an  American 
citizen  and  that  it  existed  before  September  30,  1800,  then  the 
American  minister  might  draw  an  order  on  the  United  States 
Treasury,  directing  that  the  claim  be  paid.  But  Article  X 
provided  that  the  minister  of  the  treasury  of  the  French  Repub- 
lic should  have  supervision  and  final  determination  of  every 
claim.  This  left  the  door  open  for  all  the  venality  and  corruption 
possible  in  the  French  administration  of  that  day.  In  addition 
the  claims  convention  was  an  implicit  agreement  on  the  part  of 
the  United  States  not  to  press  the  claims  of  American  citizens 
beyond  the  twenty  million  francs. 

When  Livingston  had  signed  the  treaty  of  cession,  he  rose 

and  with  tingling  enthusiasm  shook  hands  with  Marbois  and 

Monroe.    "We  have  lived  long,  but  this  is  the  noblest  work  of 

our  lives"  x  and,  no  doubt,  the  memory  of  his  service  on  the 

1  Livingston,  The  Livingstons  of  Livingston  Manor:  372. 


96  LEADING  AMERICAN  TREATIES 

committee  which  drafted  the  Declaration  of  Independence  was 
clearly  in  his  mind.  "  From  this  day  "  he  continued  "  the  United 
States  take  their  place  among  the  powers  of  the  first  rank — . 
The  instruments  which  we  have  just  signed  will  cause  no  tears 
to  be  shed:  they  prepare  ages  of  happiness  for  innumerable 
generations  of  human  creatures." 

Napoleon  said:  "The  negotiation  leaves  me  nothing  to  wish. 
Sixty  millions  for  an  occupation  that  will  not  perhaps  last  a 
day!  I  want  France  to  have  the  good  of  this  unexpected  capital, 
and  to  employ  it  in  works  for  the  use  of  her  marine. "  l  The 
"works  for  the  use  of  her  marine"  consisted  in  strengthening  the 
French  navy  for  a  descent  on  the  shores  of  England.  Even 
in  the  failure  of  this  object  Bonaparte  had  the  satisfaction  of 
feeling  that  he  had  saved  Louisiana  from  becoming  a  British 
province  and  that  he  had  transferred  whatever  rights  France  had 
in  New  Orleans  and  in  the  region  beyond  the  Mississippi  to  a 
power  which  would  serve  as  a  weight  in  the  balance  against 
Great  Britain. 

Spain  felt  outraged  at  the  treaty;  Godoy  and  King  Charles 
knew  they  could  do  nothing  beyond  making  useless  protests  to 
Bonaparte.  Jefferson's  first  intention  was  that  Monroe  should 
go  from  Paris  to  Madrid  to  negotiate  for  the  Floridas.  Monroe 
did  not  go  and  the  American  minister  at  Madrid,  Pinckney, 
failed  to  elicit  friendly  attention  for  the  project.  The  Spanish 
minister  in  Washington,  the  Marquis  de  Casa  Yrujo,  opposed 
vigorously  all  American  pretensions  to  either  East  or  West 
Florida. 

The  treaty  roused  in  the  minds  of  statesmen  at  Washington 
an  embarrassing  number  of  constitutional  questions.  The  party 
out  of  power  had  been  unable  to  find  any  substantial  grievances 
against  the  domestic  policies  of  the  administration.  Gallatin's 
reduction  of  the  taxes  had  brought  an  increase  in  the  revenue. 
There  had  been  few  removals  from  office.  The  judiciary  func- 
tioned well  under  Marshall.  The  chief  cause  of  complaint  by  the 
Federalists  seems  to  have  been  that  Jefferson  assumed  more 
executive  power  than  Washington  and  Adams  had  dreamed  of 
1  Marbois,  History  of  Louisiana:  312. 


THE  LOUISIANA  PURCHASE,  1803  97 

doing;  and  that  the  Louisiana  purchase  furnished  the  most 
alarming  example. 

Jefferson  realized  fully  that  he  would  have  difficulty  in 
harmonizing  his  actions  with  his  previously  expressed  strict 
construction  doctrines.  Even  before  Monroe  departed  for 
France  Jefferson  asked  Attorney  General  Lincoln  for  an  opinion 
on  what  form  the  treaty  should  take.  Lincoln  advised  that  the 
treaty  should  not  show  that  new  territory  was  added  to  the 
United  States,  but  that  it  should  take  the  form  of  an  adjustment 
of  boundary  with  France.1  As  frequently  happened,  Jefferson 
wanted  Gallatin's  advice  too.  Gallatin  wrote:  "If  the  acquisi- 
tion of  territory  is  not  warranted  by  the  Constitution, 
it  is  not  more  legal  to  acquire  for  one  State  than  for 
the  United  States. — To  me  it  would  appear,  (i)  that  the. 
United  States,  as  a  nation,  have  an  inherent  right  to  acquire 
territory;  (2)  that  whenever  that  acquisition  is  by  treaty,  the 
same  constituted  authorities  in  whom  the  treaty  making  power 
is  vested  have  a  constitutional  right  to  sanction  the  acquisi- 
tion. "  2  Jefferson  allowed  Monroe  to  go  to  Paris  free  from 
any  apprehensions  about  constitutionality;  largely  because  he 
had  small  hope  of  acquiring  even  the  island  of  New  Orleans. 
Jefferson  loved  to  tease  the  New  England  Federalists.  Conse- 
quently, he  honored  the  Boston  Chronicle  with  the  first  news  of 
the  purchase,  published  June  30,  1803.  Henry  Adams,  com- 
menting upon  it,  says:  "The  great  news  had  arrived;  and  the 
Federalist  orators  of  July  4,  1803,  set  about  their  annual  task 
of  foreboding  the  ruin  of  society  amid  the  cheers  and  congratu- 
lations of  the  happiest  society  the  world  then  knew. "  3 

Jefferson  proposed  to  solve  the  difficulty  by  a  constitutional 
amendment  providing  for  a  territorial  form  of  government  in  the 
region  south  of  the  thirty-second  degree  parallel  and  reserving  to 
the  Indians  the  region  to  the  north  until  another  amendment 
should  be  passed  providing  for  the  right  of  whites  to  settle  there. 
His  object  was  to  prevent  Americans  from  scattering  themselves 

1  Adams,  History  of  the  United  States,  II.:  78. 

2  Gallatin,  Works,  I.:  112. 

*  Adams,  History  of  the  United  States,  II.:  83. 


98  LEADING  AMERICAN  TREATIES 

over  too  much  territory  and  thus  by  multiplicity  of  local  in- 
terests endanger  the  union.  He  called  a  special  session  of 
Congress  to  meet  October  17,  1803.  His  letter  of  August  12 
to  Senator  Breckinridge  of  Kentucky,  afterward  Attorney  Gen- 
eral in  Jefferson's  cabinet,  shows  the  mental  processes  of  the 
President:  "This  treaty  must  of  course  be  laid  before  both 
Houses,  because  both  have  important  functions  to  exercise 
respecting  it.  They,  I  presume,  will  see  their  duty  to  their 
country  in  ratifying  and  paying  for  it,  so  as  to  secure  a  good 
which  would  otherwise  probably  be  never  again  in  their  power. 
But  I  suppose  they  must  then  appeal  to  the  nation  for  an 
additional  article  to  the  Constitution,  approving  and  confirming 
an  act  which  the  nation  had  not  previously  authorized.  The 
Constitution  has  made  no  provision  for  our  holding  foreign 
territory,  still  less  for  incorporating  foreign  nations  into  our 
Union.  The  executive  in  seizing  the  fugitive  occurrence  which  so 
much  advances  the  good  of  their  country,  have  done  an  act 
beyond  the  Constitution.  The  Legislative  in  casting  behind 
them  metaphysical  subtleties,  and  risking  themselves  like  faith- 
ful servants,  must  ratify  and  pay  for  it,  and  throw  themselves 
on  their  country  for  doing  for  them  unauthorized,  what  we  know 
they  would  have  done  for  themselves  had  they  been  in  a  situa- 
tion to  do  it."  l  Madison,  at  least  later,  held  the  same  view.2 
A  few  days  later  Jefferson  received  a  letter  from  Livingston 
stating  that  he  had  reason  to  believe  the  First  Consul  might 
change  his  mind.  Jefferson  quickly  changed  his  own  and  wrote 
to  Breckinridge:  "A  letter  received  yesterday  shows  that  nothing 
must  be  said  on  that  subject  (constitutional  amendment)  which 
may  give  pretext  for  retracting,  but  that  we  should  do  sub 
silentio  what  shall  be  found  necessary. "  3  Jefferson  failed  to 
find  support  for  his  scheme  of  an  amendment,  and  he  yielded  to 
the  opinion  of  the  leaders  within  his  party.  Then  too,  Living- 
ston's letters  were  filled  with  lack  of  confidence  in  Bonaparte ;  and 
the  Marquis  de  Casa  Yrujo  protested  that  France  had  no  right 

'Jefferson,  Works,  IV.:  500. 

*J.  Q.  Adams,  Diary,  I.:   267. 

3  Adams,  History  of  the  United  Slatv,  II.:  86. 


THE  LOUISIANA  PURCHASE,  1803  99 

to  transfer  Louisiana,  for  she  had  not  complied  with  the  provi- 
sions regarding  Tuscany  in  the  Treaty  of  St.  Ildefonso.  In  his 
message  Jefferson  threw  the  entire  problem  on  "  the  wisdom  of 
Congress. " 

The  debate  opened  in  the  House  first.  On  the  question  of 
carrying  the  treaty  into  effect  Griswold  of  New  York,  a  Federal- 
ist, argued  almost  identically  in  the  language  of  Jefferson  that 
the  constitution  did  not  authorize  the  acquisition  of  new 
territory;  and,  in  addition,  he  pointed  out  that  French 
and  Spanish  ships  were  to  enjoy  special  privileges  for  twelve 
years  in  the  ports  of  the  acquired  territory  although  the  consti- 
tution prohibited  Congress  from  granting  any  preference  by 
regulation  of  commerce  to  the  ports  of  one  State  over  those  of 
another.1  John  Randolph  replied  to  the  first  point  in  the  tenor 
of  Attorney  General  Lincoln's  advice  to  Jefferson  that  the 
United  States  had  many  doubtful  boundaries,  that  the  acquisi- 
tion of  Louisiana  fell  within  the  power  to  adjust  a  boundary, 
and  that  the  proper  organ  for  conducting  these  negotiations  was 
the  President.  To  the  second  point  he  replied  that  the  favor 
given  in  the  treaty  to  French  and  Spanish  commerce  in  the 
ports  of  the  purchase  was  "a  part  of  the  price  of  the  territory. "  2 
Roger  Griswold  of  Connecticut  admitted  that  under  the  treaty 
making  power  and  the  war  power  the  United  States  could 
acquire  territory;  but  that  such  "new  territory"  and  "new 
subjects"  "must  remain  in  the  condition  of  colonies,  and  be 
governed  accordingly. "  3  Nicholson  of  Maryland  replied  for  the 
Republicans  by  asserting  that  the  right  to  acquire  territory 
"  must  exist  somewhere :  it  is  essential  to  independent  sovereignty. ' 
And  he  pointed  out  that  New  Orleans  was  not  a  port  within  any 
State  and  therefore  failed  to  come  within  the  constitutional 
inhibition.4  Caesar  Rodney  maintained  with  him  that  the 
preference  to  New  Orleans  was  indirectly  a  benefit  to  all  the 
States  and  therefore  a  preference  to  none. 

The  Senate  took  up  the  debate  November  2,  1803.    That 

Annals  of  Congress,  13:  386,  432,  434. 

2  Ibid.,  13:  434  ff. 

3  Ibid.,   13:  463. 

*  Ibid.,  13:  466,  471. 


100  LEADING  AMERICAN  TREATIES 

body  had  already  approved  the  treaty  on  October  20,  three  days 
after  the  opening  of  the  session.  Several  speeches  were  made 
to  the  question  of  carrying  the  treaty  into  effect.  Timothy 
Pickering  of  Massachusetts  was  the  "first  national  figure  for 
the  Federalists  to  state  his  views.  He  affirmed  that  foreign  soil 
could  be  acquired  by  conquest  or  by  purchase  and  that  such 
territory  could  be  governed  as  a  dependency.  But  the  consti- 
tution did  not  give  the  President  or  Congress  the  power  to 
incorporate  such  territory  into  the  union;  nor  could  an  amend- 
ment lawfully  effect  such  a  purpose.  Pickering  clearly  did  not 
perceive  it  to  be  his  business  to  help  the  Republicans  out  of 
their  difficulties.1 

John  Taylor  of  Virginia  followed.  He  began  by  regretting 
the  enlargement  of  power  by  the  federal  government  and  the 
attempt  to  construe  general  phrases  "so  as  to  consolidate  the 
States  by  degrees  into  one  sovereignty. "  In  purchasing  Louis- 
iana the  United  States  had  bought  a  foreign  people  without 
their  consent  and  without  the  consent  of  the  States,  a  wholly 
despotic  act.  But  he  recognized  that  the  purchase  came  within 
the  treaty  and  the  war  power.  And  curiously  he  came  to  the 
conclusion  that  Congress  could  provide  for  a  government  of  the 
territory  without  an  amendment  to  the  constitution.2  In  reply 
Uriah  Tracy  of  Connecticut  made  a  point  which  reveals  how 
vaguely  citizenship  was  then  understood.  He  did  not  doubt  the 
power  to  acquire  territory,  but  to  admit  the  inhabitants  to 
citizenship  by  treaty  or  by  legislation  or  by  constitutional 
amendment  could  not  be  done.  Such  an  act  would  require  the 
"universal  consent  of  all  the  states  or  partners  to  our  political 
association;  and  this  universal  consent  I  am  positive  can  never 
be  obtained  to  such  a  pernicious  measure  as  the  admission  of 
Louisiana."  Breckinridge  replied  that  the  Federalists  would 
hold  the  territory  and  the  people  as  property  of  the  government 
of  the  United  States;  but  as  such  they  might  be  used  as  a  danger- 
ous weapon  against  one  of  the  States,  and,  therefore,  he  thought 

'Annals  of  Congress,  13:44. 
'Ibid.,  13:  50. 
'Ibid.,   13:  58- 


THE  LOUISIANA  PURCHASE,  1803  IOI 

it  was  more  constitutional  to  admit  the  inhabitants  to  citizen- 
ship through  the  treaty  making  power.  Evidently  the  Kentucky 
Resolutions  did  not  haunt  Breckinridge.1 

Pickering's  colleague,  but  not  his  friend,  John  Quincy  Adams, 
believed  that  a  constitutional  amendment  "amply  sufficient  for 
the  accomplishment  of  every  thing  for  which  we  have  contracted" 
was  the  rightful  and  legal  way  of  solving  the  problem.  And  he 
believed  that "  the  legislature  of  every  State  in  the  Union"  would 
ratify.2 

The  bill  to  carry  the  treaty  into  effect  passed  the  Senate  by  a 
vote  of  twenty-six  to  five.  The  House  had  voted  for  the  same 
bill  ninety  to  twenty-five.  The  vote  meant  that  the  largest 
transfer  of  territory  by  peaceful  sale  ever  recorded  had  been 
accomplished,  for  without  this  bill  the  treaty  would  have  been 
inoperative. 

The  next  constitutional  question  that  pressed  itself  upon 
Congress  by  reason  of  the  purchase  was:  What  power  has  Con- 
gress over  the  new  territory? 

An  amendment  was  again  proposed,  but  that  proposition  was 
rejected  because  it  tended  to  show  the  incapacity  of  the  United 
States  to  make  the  purchase.  Another  plan  was  to  hold  Louis- 
iana forever  as  a  dependency  of  the  United  States  on  the  theory 
of  an  implied  power  of  the  federal  government  to  govern  what 
it  had  a  right  to  buy.  This  plan  conformed  with  the  ideas  of 
Pickering  and  Tracy.  The  third  view  consisted  in  treating  the 
Louisiana  Purchase  in  the  same  manner  as  the  old  Northwest 
Territory.  In  fact  Congress  adapted  the  Ordinance  of  1787  for 
that  purpose.3 

BIBLIOGRAPHY 

ADAMS,  HENRY. — History  of  the  United  States,  I.  and  II.    New  York,  1903. 
American  State  Papers,  Foreign  Relations,    Volume  II.    Washington,  1832. 
Annals  of  Congress. — Volume  13.    Washington,  1852. 
CHANNING,  EDWARD. — History  of  the  United  States,  IV.:  Chapters  n  and  12. 
New  York,   1915. 

1  Annals  of  Congress,     13:  59  ff. 

2  Ibid.,  13:  67. 

3  Ibid.,  13:  1293. 


102  LEADING  AMERICAN  TREATIES 

FARRAND,  MAX. — The  Commercial  Privileges  of  the  Treaty  of  1803.  Am. 
Hist.  Rev.,  VII. :  404. 

GAYARRE,  CHARLES. — History  of  Louisiana,  4  volumes.  Third  edition. 
New  Orleans,  1885. 

JEFFERSON,  THOMAS. — Works .  9  volumes.  Edited  by  P.  L.  Ford.  New 
York,  1892-1898. 

LIVINGSTON,  E.  B. — The  Livingstons  of  Livingston  Manor.   New  York,  1910 

LYMAN,  THEODORE. — Diplomacy  of  the  United  States,  Vol.  I.    Boston,  1828. 

MAHAN,  A.  T. — The  Influence  of  Sea  Power  upon  the  French  Revolution 
and  Empire.  Boston,  1898. 

MARBOIS,  FRANCOIS  BARBE. — History  of  Louisiana,  (translation).  Phila- 
delphia, 1830. 

MONROE,  JAMES. — Writings.  Seven  volumes.  Edited  by  S.  M.  Hamilton. 
New  York,  1898-1903. 

PELZER,  Louis. — Economic  Factors  in  the  Acquisition  of  Louisiana.  Pro- 
ceedings of  the  Mississippi  Valley  Historical  Association,  VI.:  109. 

ROBERTSON,  J.  A. — List  of  Documents  in  Spanish  archives  rtlating  to  the 
History  of  the  United  States,  which  have  been  printed  or  of  which  Trans- 
scripts  are  preserved  in  American  Libraries.  Washington,  1910. 

SLOANE,  W.  M. — World  Aspects  of  the  Louisiana  Purchase.  Am.  Hist. 
Rev.  DC.:  507. 

Stale  Papers  and  Correspondence  bearing  upon  the  Purchase  of  the  Territory 
of  Louisiana.  House  Doc.,  57th  Cong.,  and  Session,  No.  431.  Wash- 
ington, 1903. 

STODDARD,  T.  LOTHROP. — French  Revolution  in  San  Domingo.   Boston,  1914. 

TURNER,  F.  J. — American  Historical  Review,  II.:  474;  III.:  400,  650;  VII.: 
706;  VIII.:  78;  X.:  249,  574.  Atlantic  Monthly,  93:  676,  807. 


CHAPTER  VI 
THE  TREATY  OF   GHENT,  1814 

"I  only  know  of  one  principle  to  make  a  nation  great,  to  produce  in  this 
country  not  the  form  but  the  real  spirit  of  union,  and  that  is,  to  protect 
every  citizen  in  the  lawful  pursuit  of  his  business." — JOHN  C.  CALHOUN. 

Students  frequently  ask,  Why  did  not  the  United  States 
declare  war  on  France  in  1812  instead  of  on  Great  Britain? 
This  attitude  has  an  element  of  honest  inquiry  in  it.  And 
it  becomes  necessary  to  trace  the  causes  of  the  War  of  1812  in 
order  to  find  an  answer  and  to  understand  the  issues  that  con- 
fronted the  commissioners  at  Ghent  in  1814. 

The  first  of  these  causes  was  the  impressment  of  American 
seamen  into  the  British  naval  service.  The  British  charged 
that  certificates  of  protection  to  American  seamen  were  frequently 
granted  on  fraudulent  evidence  by  inferior  magistrates  and 
that  British  subjects  who  wished  to  desert  the  service  of  their 
country  could  easily  procure  such  certificates.  They  pointed 
out  that  American  as  well  as  British  judges  recognized  that  a 
citizen  could  not  change  his  citizenship  at  will  but  that  the 
transfer  required  the  consent  of  the  home  state.  And  this  was 
no  doubt  true.1  It  must  be  acknowledged  that  after  1803 
American  tonnage  increased  about  70,000  tons  annually,  which 
required  an  annual  increase  of  about  4,200  sailors;  and  of  these 
Gallatin  estimated  that  2,500  were  British;2  either  they  were 
deserters  or  they  had  otherwise  removed  themselves  from  the 
British  naval  service.  The  chances  of  profit  for  the  American 
shipowner  were  so  great  that  he  could  and  did  pay  high  wages. 

1  See  opinions  of  Justices  Paterson  and  Iredell  in  Talbot  v.  Janson,  3 
Dallas  133  (1795);  that  of  Justice  Washington  in  Murray  v.  The  Charming 
Betsey,  2  Cranch  64  (1804)  and  in  U.  S.  v.  Gillies,  i  Peters'  C.  C.  Rep.  159 
(1815)  and  the  decisions  of  Chief  Justice  Parsons  in  Ainslie  v.  Martin,  9 
Mass.  461  (1813).  Justice  Story  waived  the  decision  of  the  question  of 
indelible  allegiance  in  the  Santissima  Trinidad,  7  Wheaton  283  (1822).  See 
also  Kent  Commentaries  on  American  Law,  II.:  42.  (N.  Y.  1827). 

1  Gallatin,  Works,  I.:  335. 


104  LEADING  AMERICAN  TREATIES 

Jay  had  attempted  in  1794  to  incorporate  in  his  treaty  a 
clause  limiting  the  practice  of  impressment.  But  Lord  Grenville 
assured  him  that  if  Americans  "had  been  impressed  it  was  con- 
trary to  His  Majesty's  desire,"  l  and,  therefore,  such  a  clause 
would  be  useless.  Jay  yielded  and  the  impressments  continued, 
Britain  taking  even  Swedes,  Danes,  and  Portuguese  from  Ameri- 
can crews.  In  1796  the  American  minister  in  London,  Rufus 
King,  presented  a  plan  by  which  three  classes  of  men  should 
be  immune,  namely,  native  Americans,  American  citizens  at  the 
time  of  the  treaty  of  peace,  and  foreigners  other  than  British 
subjects.  He  denned  a  fourth  class  composed  of  British  born 
subjects,  who,  subsequently  to  1783,  had  satisfied  the  require- 
ments of  American  law  for  citizenship,  covering  a  period  of  five 
years,  or  who  had  sailed  on  American  vessels  for  a  period  of 
three  years.2  Lord  Grenville  replied  that  such  a  method  might 
lend  itself  to  great  abuse  and  lead  to  "  the  discharge  at  once  of 
every  British  seaman  on  his  own  assertion,  that  he  is  an  Ameri- 
can citizen. "  3 

Rufus  King  returned  to  the  United  States  in  the  summer 
of  1803;  and  James  Monroe  was  transferred  from  Paris  to 
succeed  him.  He  received  instructions  to  limit  his  efforts  to 
securing  a  treaty  defining  impressments,  blockades,  visit  and 
search,  contraband,  and  trade  with  the  enemies'  colonies.4 
Monroe  informed  Lord  Hawkesbury  about  these  instructions 
on  April  2,  1804,  and  submitted  a  project  of  a  treaty.5  Monroe 
waited  patiently;  he  saw  one  minister  succeed  another  at  the 
Foreign  Office;  and  he  observed  that  Great  Britain  took  steps 
to  conclude  an  alliance  with  Sweden  and  Russia  against 
Napoleon  and  with  the  apparent  intent  to  deal  more  rigorously 
than  ever  with  neutral  commerce.  A  year  passed  by  and  then 
Monroe  spent  another  year  at  Madrid  in  adjusting  boundary 
disputes  with  Spain.  He  returned  and  still  the  Foreign  Office 
paid  no  attention  to  his  proposals.  In  his  despatches  home 

'American  State  Papers,  Foreign  Relations,  I.:  481. 
'Ibid.,  II.:  147. 
'Ibid.,  II.:  148. 
«Ibid.,  III.:  81. 
•Ibid.,  III.:  91,  82. 


THE  TREATY  OF  GHENT,  1814  105 

Monroe  urged  resistance  to  British  encroachments  even  at  the 
risk  of  war.  He  recognized  in  France  an  able  adversary  to 
Great  Britain  and  in  the  United  States  the  only  source  of  supply 
for  many  articles  greatly  needed  by  the  English. 

Due  to  the  futility  of  the  negotiations,  the  subject  of  impress- 
ments gradually  dropped  out  of  the  diplomatic  correspondence, 
but  the  practice  of  impressment  grew  by  inverse  ratio.  British 
war  vessels  took  their  places  off  Sandy  Hook,  visited  and 
searched  every  ship  going  in  and  coming  out  of  New  York,  and 
impressed  whomsoever  they  pleased.  Impressments  averaged  as 
high  as  one  thousand  a  year.  Ships  were  left  short-handed  and 
some  foundered  in  consequence.  Exasperation  grew  among 
merchants  and  shipowners  as  well  as  among  the  families  of  the 
seafaring  men. 

A  second  cause  for  the  War  of  1812  was  the  rule  of  war  of  1756, 
the  purport  of  which  was  to  deny  neutral  vessels  the  privilege 
of  carrying  a  trade  in  time  of  war  which  had  been  closed  in  time 
of  peace.  Due  to  the  mercantile  policy  of  that  period  virtually 
all  colonial  trade  belonged  exclusively  to  the  mother  country. 
But  the  French  and  Spanish  navies  had  been  swept  from  the 
seas  by  the  British.  Consequently,  France  and  Spain  threw  open 
to  neutrals  the  carrying  trade  between  themselves  and  their 
colonies,  especially  with  the  West  Indies.  They  easily  satisfied 
the  literal  meaning  of  the  rule  of  1756  by  bringing  the  products 
of  the  French  and  Spanish  West  Indies  into  an  American  port, 
there  paying  the  import  duties,  then  transshipping  the  goods 
often  in  the  same  vessel  to  a  French  or  Spanish  port,  and  at  the 
same  time  receiving  a  drawback  on  the  import  duties  paid  in  the 
home  port. 

This  device  of  the  continuous  voyage  worked  perfectly  until 
the  latter  part  of  the  year  1805,  when  the  news  reached  America 
that  the  British  High  Court  of  Admiralty  had  condemned  the  ship 
and  the  cargo  in  the  case  of  the  "  Essex. "  Sir  William  Scott  gave 
the  substance  of  the  case  in  the  following  words:  "It  was  the 
case  of  an  American  vessel  which  had  gone  from  America  to 
Lisbon,  where  finding  the  market  bad  she  went  on  to  Barcelona, 
and  there  took  on  a  cargo  of  Spanish  produce  for  the  Havannah, 


106  LEADING  AMERICAN  TREATIES 

under  the  direction  of  the  agent  in  Europe,  that  she  should  go 
to  the  Havannah,  first  touching  at  Salem,  in  America,  where  the 
owner  resided,  who  adopted  the  plan  and  sent  the  vessel  on.  It 
appeared  clearly  to  the  Court,  that  it  was  the  intention,  origin- 
ating in  the  mind  of  an  authorized  agent,  acting  under  full 
powers,  that  the  vessel  should  go  to  the  Havannah,  and  that 
this  purpose  was  adopted  by  the  owner;  that  it  was  in  reality 
a  continued  voyage  from  Spain  to  the  Havannah ;  that  as  to  the 
intention  all  doubt  was  done  away  by  the  adoption  on  the  part 
of  the  owner,  who  had  the  vessel  in  his  own  port,  and  was  fully 
implicated  in  the  engagement  of  sending  her  on,  according  to  the 
projected  voyage."  1 

The  duties  on  the  cargo  at  Salem  amounted  in  this  case  to 
$5,278,  but  a  drawback  of  $5,080  was  permitted  on  exportation 
which  made  the  real  duty  on  the  valuable  cargo  only  $198.  This 
and  succeeding  cases,  notably  the  "William",2  greatly  curtailed 
the  scope  of  American  commercial  ventures.  A  further  extension 
of  the  rule  of  1756  was  made  by  an  order  in  council,  January  7, 
1807,  which  forbade  any  neutral  vessel  to  engage  in  the  coast- 
wise trade  of  France  or  of  her  allies.  This  prevented  Americans 
from  seeking  the  best  market  by  going  from  one  European  port 
to  another. 

A  third  cause  was  the  orders  hi  council.  These  were  dictated 
by  British  merchants  and  shipowners.  The  first  one  appeared 
on  May  16, 1806,  and  it  declared  the  coast  from  Brest  to  the 
river  Elbe  under  blockade.  On  November  21,  1806,  Napoleon 
issued  his  Berlin  Decree  which  declared  the  British  Isles  in  a 
state  of  blockade  and  rendered  ships  and  goods  going  to  or  com- 
ing from  them  liable  to  condemnation.  He  did  not  enforce  this 
decree  against  American  commerce  for  almost  a  year.  British 
merchants  began  to  think  that  France  and  the  United  States  had 
an  understanding.  Their  effective  advocate,  James  Stephen,  had 
already  published  his  "War  in  Disguise;  or  the  Frauds  of  the 
Neutral  Flags. "  He  argued  that  America  with  her  commerce 
aided  England's  enemies  and  that  she  should  be  treated  accord- 

1  5  C.  Robinson,  369. 
»Ibid.,  385  (1806). 


THE  TREATY  OF  GHENT,  1814  107 

ingly.1  The  Chancellor  of  the  Exchequer,  Spencer  Percival, 
drafted  an  order  in  council,  approved  November  n,  1807,  which 
provided  that  American  commerce  destined  for  any  region 
except  the  West  Indies,  Great  Britain,  and  Sweden  would  have 
to  enter  a  British  port  and  take  out  a  British  license.  This 
meant  that  no  articles  on  the  British  prohibited  list,  cotton  for 
example,  would  be  permitted  to  enter  the  ports  under  Napoleon's 
domination.  It  meant  that  no  articles  from  those  ports  could 
be  taken  to  the  United  States.  It  meant  also  that  license  fees 
and  taxes  would  have  to  be  paid  in  British  ports.  In  a  sense 
Napoleon  was  right  when  he  said  that  American  commerce 
thereby  denationalized  itself  and  became  British. 

Percival's  policy  aimed  to  check  American  commerce  and  to 
stimulate  English  trade;  only  incidentally  was  it  meant  to 
retaliate  for  the  Berlin  Decree.2  As  an  instance,  the  British 
Board  of  Trade  in  1807  issued  sixteen  hundred  licenses  to  enter 
the  interdicted  European  ports  mostly  north  of  the  Scheldt,  but 
ports  from  Brest  to  Bayonne  inclusive  were  specified  in  the 
licenses.  From  these  ports  the  licensed  vessels  could  export 
merchandise  "to  whomsoever  the  same  may  appear  to  belong," 
which  words  appeared  in  all  of  the  licenses.3  One  of  the  best 
legal  authorities  of  his  day,  Dr.  Phillimore,  stated  that  docu- 
ments laid  on  the  table  of  the  House  of  Lords  revealed  "that 
upwards  of  fifteen  thousand  licenses  were  issued"  in  1810  by 
the  Privy  Council,  and  that  "forty-eight  thousand  foreign  sea- 
men" were  employed  in  that  year  on  the  licensed  vessels.4 
These  vessels  availed  themselves  of  the  so-called  neutrals  flags  of 
Pappenberg,  Kniphausen,  and  Varel.  Frequently  they  carried 
licenses  and  papers  from  both  the  Board  of  Trade  and  the 
Minister  of  Marine  in  Paris  and  had  them  ready  to  show  and 
to  verify  by  oath  as  occasion  demanded.  Phillimore  asked, 
"Is  not  Holland  an  integral  part  of  the  French  Empire?  .  .  . 

^ee  introduction  to  Sir  Francis  Piggott's  edition  of  "Stephen's,  War 
in  Disguise,"  London,  1917. 

2Walpole,  Life  of  Percival,  II.:  280,  285,  287. 

3  See  Phillimore,  Joseph,  Reflections  on  the  Nature  and  Extent  of  the 
License  Trade,  53,  and  copies  of  licenses  in  the  appendix.    (London,  1811). 

4  Phillimore,  Reflections,  3. 


108  LEADING  AMERICAN  TREATIES 

Are  not  the  Hans  towns,  Pappenberg,  Kniphausen  and  Varel, 
precisely  under  similar  circumstances?  Are  not  the  northern 
States  of  Europe  .  .  .  with  the  exception  perhaps  of  Russia,  who 
has  no  commercial  marine,  either  the  tributaries  or  feudatories 
of  France?  These  mariners,  then  .  .  .  are  protected  in  their 
approach  to  this  country,  are  convoyed  to  our  very  shores  by  our 
own  fleets,  are  in  the  habit  of  receiving  immense  sums  for  freights 
from  our  merchants  for  the  importation  of  enemies  produce  into 
our  posts;  and  what  is  infinitely  more  alarming,  are  daily  laying 
the  foundation  of  a  military  marine,  which  will  necessarily  be 
under  the  influence  and  control  of  him,  whose  primary  object  is 
the  humiliation  of  Great  Britain."  * 

Thus  the  orders  in  council  forbade  the  direct  intercourse  of 
American  vessels  with  the  countries  under  Napoleon's  sway  and 
left  British  trade  largely  open  through  the  license  system. 
These  orders  did  not  pretend  to  establish  an  effective  blockade, 
but  they  rendered  liable  to  condemnation  any  American  vessel 
and  her  cargo  that  was  destined  for  the  forbidden  ports.  Eng- 
lishmen themselves  realized  the  suicidal  effect  of  this  clandestine 
trade  with  the  enemy.  The  merchants  and  shipowners  of 
Hull  petitioned  the  Board  of  Trade  to  abolish  the  license  system, 
which  however  beneficial  it  might  be  to  them  individually  was 
pregnant  with  danger  to  the  general  interests  of  England.  In 
addition  to  Dr.  Phillimore,  who  published  the  first  edition  of  his 
"Reflections"  anonymously,  such  men  as  Alexander  Baring, 
better  known  to  Americans  as  Lord  Ashburton,  and  William 
Wilberforce  rose  in  the  House  of  Commons  and  pointed  out  the 
danger  to  Britain  of  such  indiscriminate  issues  of  licenses  and 
how  war  with  America  would  be  almost  inevitable.  But  James 
Stephen  and  Spencer  Percival  refused  to  yield.  British  trade 
continued  to  increase  as  is  shown  by  the  following  table. 
Imports  into  Great  Britain  Exports  from  Great  Britain 

1807— £25,326,845  £36,394,443 

1808—   25,660,953  36,306,385 

1800—  30,170,292  46,049,777 

1810—  37,613,294  47,000,926 

Phillimore,  Reflections,  introduction  v. 


THE  TREATY  OF  GHENT,  1814  109 

In  spite  of  the  orders  in  council  the  growth  of  British  trade 
was  probably  more  rapid  than  had  ever  been  witnessed  before. 

Napoleon  retaliated  to  Percival's  order  in  council  by  issuing 
the  Milan  Decree,  December  17,  1807.  It  declared  that  any 
neutral  ship  which  submitted  to  search  by  an  English  vessel, 
paid  any  duty  to  Great  Britain,  or  was  destined  for  or  came 
from  a  British  port  would  be  considered  good  prize.  This  decree 
became  known  only  slowly  among  Americans.  The  more  appar- 
ent and  the  more  effective  bar  to  their  trade  with  the  French 
dominions  lay  in  the  insolent  British  seadogs.  To  allay  objec- 
tions from  the  United  States  the  cabinet  modified  the  form  of 
the  orders  in  council,  April  26,  1809,  but  the  substance  of  the 
orders  in  council  was  not  relinquished  until  two  days  before  the 
United  States  declared  war. 

A  fourth  cause  of  the  War  of  1812  was  the  affair  of  the  "Chesa- 
peake" and  the  "Leopard."  Early  in  1807  a  British  squadron 
hovered  outside  of  Hampton  Roads  for  the  purpose  of  searching 
American  merchantmen  going  in  and  out  and  of  making  impress- 
ments. These  British  vessels  came  into  port  occasionally  for 
supplies  and  at  such  times  members  of  the  crew  occasionally 
deserted.  On  March  7,  a  whole  boat's  crew  left  the  "Halifax. " 
These  deserters  walked  the  streets  of  Norfolk  with  more  security 
than  did  the  British  officers  who  met  them  and  asked  them  to 
return.  Four  of  these  men  enlisted  on  the  American  frigate 
"Chesapeake,"  under  orders  to  go  to  the  Mediterranean.  The 
captain  of  the  "Halifax"  reported  his  grievances  to  Admiral 
Berkeley  at  Halifax.  Berkeley  did  not  wait  to  consult  his 
superiors  in  London  but  issued  an  order  that  if  the  "  Chesapeake  " 
were  met  with  at  sea  outside  the  limits  of  the  United  States  a 
copy  of  the  order  should  be  shown  to  the  captain  and  his  vessel 
should  thereupon  be  searched  for  the  deserters.  The  frigate 
"Leopard, "  Captain  Humphreys,  brought  this  order  from  Halifax 
to  the  squadron  off  Hampton  Roads  June  21,  1807.  It  was 
the  first  time  that  a  public  ship  of  the  United  States  was  to  be 
searched  for  deserters. 

On  June  22,  1807,  the  "Chesapeake,"  Commodore  Barren 
commanding,  started  on  what  was  thought  to  be  her  long  voyage 


1 10  LEADING  AMERICAN  TREATIES 

to  the  Mediterranean.  No  one  on  board  had  an  inkling  of  an 
engagement  unless  it  should  be  with  the  Barbary  pirates  after 
they  had  passed  Gibraltar.  The  crew  had  never  had  a  drill.  The 
sick  enjoyed  the  sun  on  the  upper  deck.  Repairs  and  supplies 
cluttered  the  gun  deck.  As  the  "Chesapeake"  stood  out  to  sea 
the  "Leopard"  followed.  But  this  caused  no  apprehension 
for  it  was  the  business  of  the  British  vessels  to  cruise  up  and 
down  the  coast.  At  3:30  in  the  afternoon  the  "Leopard"  bore 
down  close  to  the  windward,  hailed,  and  said  she  had  despatches 
for  the  commodore.  Such  conduct  frequently  happened  as  a 
courtesy,  especially  when  a  vessel  was  bound  on  a  long  voyage; 
and  British  vessels  often  assumed  as  their  right  the  position  to 
the  windward.  Commodore  Barren  returned  the  hail  and  hove 
to. 

At  3:45  a  British  lieutenant  came  on  board,  delivered  Admiral 
Berkeley's  order  together  with  a  note  stating  that  the  captain 
of  the  "Leopard"  would  not  presume  to  say  anything  in  addi- 
tion. Barren  replied:  "I  know  of  no  such  men  as  you  describe. 
The  officers  that  were  on  the  recruiting  service  for  this  ship  were 
particularly  instructed  by  the  Government,  through  me,  not  to 
enter  any  deserters  from  his  Britannic  Majesty's  ships,  nor  do 
I  know  of  any  being  here.  I  am  also  instructed  never  to  permit 
the  crew  of  any  ship  that  I  command  to  be  mustered  by  any 
other  but  their  own  officers.  It  is  my  disposition  to  preserve 
harmony,  and  I  hope  this  answer  to  your  despatch  will  prove 
satisfactory."  l 

The  lieutenant  left  at  4:15.  Commodore  Barren  ordered  his 
officers  to  prepare  the  "Chesapeake"  for  action.  The  "Leo- 
pard" edged  nearer.  Captain  Humphreys  hailed  and  cried  out 
that  he  was  under  necessity  to  comply  with  orders.  Barron 
tried  to  gain  time  by  saying  he  could  not  hear,  for  it  would  take 
half  an  hour  to  get  his  ship  ready  to  fire.  Humphreys  repeated 
and  forthwith  fired  a  shot  across  the  bow  of  the  Chesapeake, 
another  shot  directly  at  her,  and  then  three  broadsides  followed 
within  pistol  shot  range  during  fifteen  minutes.  The  officers 
of  the  "Chesapeake"  conducted  themselves  gallantly  and  the 
1  Adams,  History  of  the  United  Slates,  IV.:  13. 


THE  TREATY  OF  GHENT,  1814  III 

crew  behaved  bravely,  although  there  was,  of  necessity,  consider- 
able confusion.  Barren  endured  the  raking  fire  until  he  had 
been  able  to  fire  one  gun  for  the  honor  of  the  ship.  He  then 
ordered  the  flag  to  be  hauled  down.  The  British  recovered  the 
four  deserters.  And  Barren,  disgraced,  took  the  "Chesapeake" 
back  to  Norfolk  to  await  orders.1 

Mass  meetings  and  newspapers  throughout  the  United  States 
condemned  the  outrage.  On  July  2,  1807,  Jefferson  issued  a 
proclamation  requiring  all  British  armed  vessels  to  leave  Ameri- 
can waters  and  forbidding  Americans  to  have  any  relations 
with  them.  He  requested  the  governors  to  hold  their  quotas 
of  the  militia  in  readiness.  Madison  and  Gallatin  favored 
preparations  for  war. 

Canning  at  the  Foreign  Office  did  obtain  the  recall  of 
Admiral  Berkeley,  and  thereby  roused  a  furious  protest  from 
English  business  men.  To  Monroe,  Canning  expressed  himself 
willing  to  disavow  the  attack  on  the  "Chesapeake."  But 
Secretary  Madison  insisted  in  his  instructions  that,  as  a  security 
for  the  future,  an  entire  abolition  of  impressments  from  ves- 
sels under  the  flag  of  the  United  States  be  conceded.2  This 
Canning  could  not  concede,  nor  could  anyone  else  in  his  place, 
for  it  would  have  brought  a  downfall  of  the  cabinet.  Canning 
sent  George  Rose  as  an  envoy  to  Washington  with  instructions 
to  condition  his  disavowal  of  the  attack  on  the  "Chesapeake" 
on  a  similar  disavowal  by  Secretary  Madison  of  the  act  of 
Commodore  Barren  in  enticing  British  seamen  to  desert  and  in 
shielding  them  on  board  the  "  Chesapeake. "  3  The  consequence 
was  that  no  disavowal  took  place  on  either  side.  But  the  fact 
remained  that  not  since  the  battle  of  Lexington  had  the  Ameri- 
cans received  a  blow  which  so  united  them  in  a  national  con- 
sciousness as  did  the  attack  of  the  "Leopard"  on  the  "Chesa- 
peake." 

A  fifth  cause  of  the  war  was  the  American  non-importation 
and  embargo  acts.  Jefferson  conceived  and  believed  that  he 

1  Niles,  Register,  I.:  49. 

2 American  State  Papers,  Foreign  Relations,  III.:  183. 

s  Adams,  History  of  the  United  States,  IV.:  181. 


112  LEADING  AMERICAN  TREATIES 

might  bring  both  the  British  and  the  French  to  a  proper  recog- 
nition of  American  neutral  rights  by  an  economic  boycott.  Both 
he  and  Congress  had  played  with  the  proposition  since  April, 
1806.  After  the  "Chesapeake"  affair  Jefferson's  conviction 
grew  stronger.  The  non-importation  act  became  effective  on 
December  14,  1807.  It  barred  British  manufactures  of  leather, 
silk,  hemp,  glass,  silver,  paper,  and  many  articles  of  wool  from 
entry  into  the  United  States.  But  the  measure  appeared 
inadequate  especially  in  view  of  Napoleon's  intermittant  seizures 
of  American  ships.  Hence,  Jefferson  proposed  and  Congress 
passed  an  embargo  act,  December  22,  1807.  It  purported  to 
hold  American  ships  and  goods  in  port  indefinitely.  A  lack  of 
public  vessels  and  revenue  cutters  permitted  evasions.  Great 
Britain  and  France  showed  no  signs  of  repealing  the  orders  in 
council  and  the  decrees.  In  fact,  Napoleon  approved  of  the 
embargo,  for  the  British  navy  had  been  largely  successful  in 
keeping  American  ships  away  from  his  coasts;  and  he  preferred 
to  think  that  the  United  States  had  adopted  his  continental 
system.  He  went  so  far  as  to  instruct  his  minister  in  Washington, 
Turreau,  to  propose  an  alliance.  l  In  Great  Britain  prices  of 
foodstuffs  advanced  considerably,  but  the  chief  effect  of  the 
embargo  was  to  further  antagonize  the  British.  Secretary 
Madison  instructed  Pinkney  in  London  to  offer  a  withdrawal  of 
the  embargo  if  Great  Britain  would  cancel  her  orders  in  council. 
Canning  replied:  "His  Majesty  cannot  consent  to  buy  off  that 
hostility  which  America' ought  not  to  have  extended  to  him,  at 
the  expense  of  a  concession  made,  not  to  America,  but  to 
France. " 

The  embargo  act  recoiled  most  violently  upon  industry  at 
home.  The  Federalists  argued  convincingly  that  the  embargo 
cost  more  than  war.  True,  citizens  were  not  killed,  but  their 
productive  power  was  paralyzed.  The  embargo  threatened  to 
bankrupt  the  government  as  well  as  the  people,  for  the  import 
duties  fell  off  greatly.  And  the  moral  corruption  caused  by  the 
measure  was  worse  than  that  of  war.  Smuggling  grew.  Threats 

'Adams,  History  of  the  United  States,  IV.:  310. 
•American  State  Papers,  Foreign  Relations,  III.:  231. 


THE  TREATY  OF  GHENT,  1814  113 

and  acts  of  defiance  against  the  government  occurred.  As  an 
example,  Amelia  Island,  lying  off  the  coast  between  Florida  and 
Georgia,  became  the  center  of  an  illicit  trade  of  such 
volume  as  to  arouse  the  envy  of  New  York  City.  As  another 
example,  the  Vermonters  in  April,  1808,  constructed  an  immense 
raft  of  their  surplus  lumber  on  Lake  Champlain,  built  thereon  a 
ball  proof  fort,  and  placed  on  the  raft  their  pork,  beef,  wheat, 
etc. — the  whole  worth  over  $300,000,  bound  for  Canada.  A 
crew  of  five  hundred  men  defied  the  customs  officers  successfully. 
The  governors  of  Vermont  and  New  York  had  called  out  the 
militia  to  prevent  its  departure,  but  the  raft  escaped.  Mass- 
achusetts under  the  administration  of  the  Democratic  Governor 
Sullivan  openly  defied  the  law  by  allowing  coastwise  ships  to 
bring  in  flour,  corn,  rice,  and  rye.  Jefferson  took  the  governor  to 
task;  and  Sullivan  in  reply  pointed  out  the  danger  of  insurrec- 
tion. Jefferson  conceded  finally  that  the  embargo  might  lead  to 
war  and  asked  Congress  to  authorize  an  increase  in  the  regular 
army.  His  last  important  act  as  President  was  to  sign  a  repeal 
of  the  embargo  act. 

Non-importation  continued  to  pass  through  various  stages, 
the  most  provocative  being  that  under  the  Macon  Bill  No.  2, 
May,  1810.  This  law  authorized  the  President  to  prohibit 
trade  with  the  nation  which  did  not  repeal  its  decree  or  orders 
in  council  by  March  3,  1811. 

As  soon  as  Napoleon  heard  of  the  Macon  Bill  he  quickly 
instructed  his  minister  of  foreign  affairs,  Due  de  Cadore,  to 
write  to  the  American  minister  in  Paris,  General  Armstrong, 
August  5,  1810:  "I  am  authorized  to  declare  to  you,  sir,  that  the 
decrees  of  Berlin  and  Milan  are  revoked,  and  that  after  Novem- 
ber i  they  will  cease  to  have  effect, — it  being  understood  that 
in  consequence  of  this  declaration  the  English  are  to  revoke 
their  orders  in  council,  and  renounce  the  new  principles  of 
blockade  which  they  have  wished  to  establish;  or  that  the 
United  States  will  conformably  to  the  act  you  have  just  com- 
municated, cause  their  rights  to  be  respected  by  the  English. "  l 

Madison  accepted  Cadore's  letter  as  proof  that  the  decrees 
1  American  State  Papers,  Foreign  Relations,  III.:  386. 


114  LEADING  AMERICAN  TREATIES 

had  been  repealed.  He  may  have  suspected  the  wiliness  of 
Napoleon's  diplomacy,  but  he  chose  to  refrain  from  expressing 
the  thought  that  Napoleon  meant  to  condition  the  repeal  of  the 
decrees  on  the  cancellation  of  the  orders  in  council  by  the 
British.  On  November  2,  1810,  Madison  issued  a  proclamation 
stating:  "It  has  been  officially  made  known  to  this  Government 
that  the  edicts  of  France,  violating  the  neutral  commerce  of 
the  United  States,  have  been  so  revoked  as  to  cease  to  have 
effect  on  the  first  of  the  present  month. "  *  On  the  same  day 
G&llatin  issued  an  order  to  the  collectors  of  customs  providing 
for  the  cessation  of  commercial  intercourse  with  Great  Britain 
on  and  after  February  2,  1811.  Hundreds  of  American  vessels 
willingly  assumed  the  risk  of  capture  by  the  British  and  set  sail 
for  France. 

Napoleon  received  the  news  of  Madison's  proclamation  with 
surprise  and  pleasure.  At  last  the  United  States  had  adopted 
for  itself  his  continental  system.  He  had  not  repealed  his 
decrees.  Pending  developments  he  permitted  American  vessels 
to  obtain  licenses  for  trade  with  France  proper.  He  did  nothing 
to  make  amends  for  past  seizures.  And  he  continued  to  seques- 
ter ship  after  ship  on  one  pretext  or  another.  Then,  to  perplex 
the  Americans  about  his  intentions,  he  would  allow  individual 
vessels  to  discharge  their  cargo  on  the  condition  that  they  would 
export  its  value  in  "national  merchandise,  of  which  two- thirds 
will  be  in  silk."2 

In  Great  Britain,  Lord  Wellesley,  brother  of  the  Duke  of 
Wellington,  had  succeeded  Canning  at  the  Foreign  Office.  When 
Pinkney  asked  that  the  orders  in  council  be  repealed  on  the 
ground  that  Napoleon  had  revoked  his  decrees  and  that,  there- 
fore, retaliation  would  be  no  longer  necessary,  Wellesley  replied 
that  he  could  find  no  evidence  that  Napoleon  had  revoked  his 
decrees  and  expressed  a  willingness  to  receive  what  information 
Pinkney  had.  Pinkney  could  furnish  only  the  President's 
proclamation.  By  January  14,  1811,  Pinkney's  patience  gave 
out.  He  asked  for  an  audience  of  leave  on  the  ground  that  after 

'Richardson,  Messages,  I.:  482. 

'American  State  Papers,  Foreign  Relations,  III.:  505. 


THE  TREATY  OF  GHENT,  1814  115 

the  lapse  of  many  months  Great  Britain  had  taken  no  steps  to 
send  a  minister  to  the  United  States.  Wellesley  wrote  him  a 
private  letter  announcing  that  A.  J.  Foster  would  be  immedi- 
ately gazetted  as  minister  to  the  United  States.  Pinkney 
replied  in  an  official  note  and  therein  presumed  to  ask,  without 
waiting  for  instructions  from  home,  what  Mr.  Foster  was  to  do  in 
Washington;  whether  the  orders  in  council  would  be  cancelled, 
the  paper  blockades  be  annulled,  and  the  affair  of  the  "Chesa- 
peake" settled  in  accordance  with  American  wishes.1  Lord 
Wellesley  replied  by  private  letter  that  Great  Britain  could  not 
yield.  Pinkney  thereupon  renewed  his  request  for  an  au- 
dience of  leave  on  February  28,  1811,  which  the  Prince  Regent 
conceded. 

A  sixth  cause  of  the  war  consisted  in  the  trouble  the  American 
frontiersmen  were  having  with  the  Indians  hi  the  North  West. 
It  is  now  clear  that  these  troubles,  including  the  battle  of 
Tippecanoe,  were  due  largely  to  the  land  hunger  of  the  pioneers 
rather  than  to  Indian  hostility  infused  by  the  British.2  But  the 
Americans  believed  otherwise  and  their  belief  determined  their 
actions. 

A  seventh  cause  of  the  war  consisted  hi  the  peculiar  character 
of  the  diplomats  and  of  the  diplomacy  of  the  tune.  Napoleon 
was  the  shiftiest  diplomat  of  his  day  if  not  of  his  century.  He 
enforced  the  Berlin  and  Milan  Decrees  whenever  such  action 
promoted  his  interest.  The  Bayonne  Decree  of  April,  1808, 
ordered  the  confiscation  of  all  American  vessels  arriving  in 
France.  Napoleon  issued  and  enforced  it  on  the  nice  pretext 
that  the  Embargo  Act  permitted  no  American  vessel  lawfully  to 
leave  port,  therefore,  ships  and  cargoes  entering  French  ports 
claiming  to  be  American,  had  to  be  considered  as  British.  The 
most  atrocious  of  his  decrees,  that  of  Rambouillet,  secretly 
issued,  March  23,  1810,  and  published  May  14,  1810,  covered 
the  seizure  of  American  vessels  in  Portuguese,  Spanish,  Dutch, 
and  Italian  ports.  But  Macon's  Bill,  No.  2  passed  Congress  that 
same  month,  May,  1810.  And  when  Napoleon  heard  of  it  he 

1  American  State  Papers,  Foreign  Relations,  III. :  414. 

3  Adams,  History  of  the  United  States.  VI.:  chapters  4  and  5. 


Il6  LEADING  AMERICAN  TREATIES 

scored  through  Cadore's  letter  a  diplomatic  victory.  Whenever 
his  seizures  threatened  a  rupture  with  the  United  States  he 
would  either  change  his  tactics  or  tatalizingly  dangle  the  pos- 
sibility of  ceding  Florida  to  the  United  States,  a  golden  apple 
very  much  desired  by  both  Jefferson  and  Madison. 

Pinkney  took  his  departure  from  London  in  February,  1811. 
At  no  time  was  America  more  in  need  of  a  minister  at  the 
Court  of  St.  James  than  during  the  next  sixteen  months.  And 
yet  no  one  can  have  any  feeling  but  admiration  for  Pinkney. 
He  had  done  his  utmost  during  five  years.  As  an  interpreter  of 
political  events  and  as  a  negotiator  he  had  to  match  both 
Canning  and  Wellesley  and  he  did.  l 

The  British  diplomats  in  Washington  conducted  themselves 
with  a  consciousness  that  the  United  States  lay  at  the  mercy 
of  the  British  navy.  Erskine  forgot  it  temporarily  by  placing  a 
conciliatory  interpretation  upon  his  instructions  from  Canning, 
which  brought  his  peremptory  recall  and  a  prompt  repudiation 
of  the  agreement  to  revoke  the  orders  in  council  he  had  reached 
with  President  Madison.  Francis  James  Jackson  succeeded 
Erskine.  Canning  instructed  him  to  point  out  that  "The 
American  government  cannot  have  believed  that  such  an 
arrangement  as  Mr.  Erskine  consented  to  accept  was  conformable 
to  his  instructions."  This  imputation  of  bad  faith  was  one 
which  Madison  only  had  a  full  warrant  to  make.  Jackson  had 
applied  for  the  mission  to  Washington.  He  had  been  successful 
on  similar  occassions  before.  It  was  he  who  carried  the  demand 
to  the  Danish  Prince  Royal  at  Kiel  to  deliver  the  fleet  which 
led  to  the  bombardment  of  Copenhagen  in  September  of  1807. 
Even  King  George  III  thought  the  manner  of  presenting  that 
demand  deserved  a  rebuke.  When  Jackson  was  presented  at 
court  on  his  return  the  King  asked:  "Was  the  Prince  Royal 
upstairs  or  down,  when  he  received  you?"  "He  was  on  the 
ground  floor, "  replied  Jackson.  "I  am  glad  of  it!  I  am  glad  of 
it!  for  if  he  had  half  the  spirit  of  his  uncle  George  III,  he  would 
have  infallibly  kicked  you  down  stairs. " 

1  See  Wheaton,  Life,  Writings,  etc.,  of  William  Pinkney. 
•Adams,  Hislory  of  the  United  States,  IV.:  65. 


THE  TREATY  OF  GHENT,  1814  117 

According  to  his  instructions,  Jackson  charged  the  American 
government  with  fraud.  His  insolence  brought  out  the  fine 
temper  of  President  Madison  who  mentioned  that  when  Great 
Britain  refused  to  fulfill  her  pledge  a  formal  and  frank  disclosure 
of  her  reasons  became  her  duty  and  that  the  United  States  had 
a  right  to  look  to  Jackson  for  this  disclosure.1  Jackson  fenced  at 
first  and  then  sulked.  Finally,  Madison  instructed  the  Secretary 
of  State  to  inform  Jackson  that  no  further  communication 
would  be  received  from  him,  November  8,  1809.  From  this 
time  until  the  arrival  of  Foster,  July  2,  1811,  Great  Britain  had 
no  minister  in  Washington.  Beyond  making  the  tardy  dis- 
avowal for  the  attack  on  the  "Chesapeake,"  November  i,  1811, 
Foster  could  do  nothing  but  express  diplomatic  threats. 

The  younger  element  in  the  Congress  that  met  in  December, 
1811,  felt  that  their  country  had  been  humiliated  long  enough. 
Impressments,  the  captures  off  the  American  coast,  the  rule  of 
war  of  1756,  the  orders  in  council,  the  "Chesapeake,"  Jackson's 
haughty  diplomacy,  the  return  of  Pinkney,  the  Indian  troubles, 
all  flamed  the  desire  for  war.  Madison,  Monroe,  and  Gallatin 
had  no  well  defined  plan.  This  made  it  all  the  easier  for  the 
"war  hawks,"  Henry  Clay  of  Kentucky,  John  C.  Calhoun  of 
South  Carolina,  Peter  B.  Porter  of  New  York  and  Felix  Grundy 
of  Tennessee,  to  assume  the  leadership.  They  advocated  redress 
for  wrongs  endured,  and  they  wanted  to  incorporate  Canada 
and  the  Floridas.  They  assumed  the  Floridas  to  be  under  Brit- 
ish control.  No  one  struck  the  keynote  better  than  Calhoun  in 
his  first  set  speech  before  the  House,  December  12, 1811.  "Sir,  I 
only  know  of  one  principle  to  make  a  nation  great,  to  produce 
in  this  country  not  the  form  but  the  real  spirit  of  union;  and  that 
is  to  protect  every  citizen  in  the  lawful  pursuit  of  his  business. 
He  will  then  feel  that  he  is  backed  by  the  Government;  that  its 
arm  is  his  arms;  and  will  rejoice  in  its  increased  strength  and 
prosperity.  Protection  and  patriotism  are  reciprocal. "  z 

Congress  declared  war  June  18,  1812.  Aside  from  Perry's 
victory  on  Lake  Erie,  September  10,  1813,  and  Jackson's  victory 

1  American  State  Papers,  Foreign  Relations,  III.:  311. 

2  Annals  of  Congress,  23.:  479. 


Il8  LEADING  AMERICAN  TREATIES 

at  New  Orleans  after  the  treaty  of  peace  had  been  signed,  no 
outstanding  action  of  signal  credit  to  either  side  could  be 
boasted.  British  and  Americans  grew  to  know  each  other 
better  hi  war  than  they  had  in  peace.  British  contempt  for 
American  seamanship  changed  to  respect.  Michael  Scott  of 
Glasgow,  who  wrote  from  first  hand  knowledge  as  a  lieutenant 
in  the  British  navy,  expressed  this  sentiment  best  in  his  Tom 
Cringles'  Log:  "I  don't  like  Americans,  I  never  did  and  never 
shall  like  them.  I  have  seldom  met  an  American  gentleman  in 
the  large  and  complete  sense  of  the  term.  I  have  no  wish  to  eat 
with  them,  drink  with  them,  deal  with  or  consort  with  them  hi 
any  way;  but  let  me  tell  the  whole  truth, — nor  fight  with  them, 
were  it  not  for  the  laurels  to  be  acquired  by  overcoming  an 
enemy  so  brave,  determined,  alert,  and  every  way  so  worthy  of 
one's  steel  as  they  have  always  proved."  1  Again  Scott  said: 
"  In  the  field  or  grappling  in  mortal  combat  on  the  blood-slippery 
quarter-deck  of  an  enemy's  vessel,  a  British  soldier  or  sailor  is 
the  bravest  of  the  brave.  No  soldier  or  sailor  of  any  other 
country,  saving  and  excepting  those  damned  Yankees,  can 
stand  against  them." 

In  the  Revolution  the  American  struggle  brought  on  a 
European  war.  In  1812  the  Americans  were  drawn  into  a 
European  war.  Russia  had  become  the  ally  of  Great  Britain; 
and  Czar  Alexander  disliked  the  American  war  because  it  weak- 
ened England  at  the  moment  when  Russia  was  about  to  be 
invaded  by  Napoleon  and  his  armies.  Four  months  after  the 
United  States  had  declared  war  Alexander  prepared  to  offer 
mediation.  The  offer  reached  Secretary  Monroe  on  March  8, 
1813.  Madison  directed  Monroe  to  accept  the  offer  promptly; 
and  they  assumed  that  the  offer  would  not  have  been  made 
without  the  consent  of  Great  Britain.  They  consulted  Jefferson 
and  decided  to  appoint  a  commission  to  go  to  St.  Petersburg  for 
the  negotiations.  John  Quincy  Adams  was  already  there  as 
American  minister.  Albert  Gallatin  and  James  A.  Bayard,  a 
Federalist  from  Delaware,  were  the  other  members.  While 
Gallatin  and  Bayard  were  on  their  voyage  Lord  Castlereagh 
1  Tom  Cringle's  Log  :  179,  (New  York,  1895). 


THE  TREATY  OF  GHENT,  1814  119 

came  to  the  conclusion  to  reject  the  Czar's  offer  of  mediation. 
Consequently,  the  American  commission  waited  in  St.  Peters- 
burg from  July,  1813,  to  January,  1814. 

Czar  Alexander  renewed  the  tender  of  his  good  offices.  Castle- 
reagh  declined  again  to  accept  them  on  the  ground  that  the 
dispute  with  America  invoked  domestic  questions,  but  he 
announced  his  willingness  to  negotiate  directly  with  the  Ameri- 
cans. He  suggested  London  or  Gottenburg  as  the  place  of 
meeting.  President  Madison  appointed  a  new  commission  com- 
posed of  J.  Q.  Adams,  J.  A.  Bayard,  Henry  Clay,  and  Jonathan 
Russell.  Madison  omitted  Gallatin  on  the  assumption  that  he 
was  on  his  way  home  to  resume  his  duties  at  the  Treasury. 
Gallatin  had,  however,  gone  to  London  to  facilitate  the  opening 
of  direct  negotiations;  and  on  hearing  of  it  Madison  quickly 
appointed  Gallatin  a  member  of  the  commission.  Clay  and 
Russell  sailed  for  Gottenburg.  Gallatin  preferred  London 
because  the  commission  could  meet  personally  the  Secretary  of 
State  for  Foreign  Affairs  and  because  Gallatin  knew  several  of 
the  leading  men.  But  Clay  and  Adams  refused  to  sit  in  London, 
stating  that  "they  were  plain  Americans  and  that  in  England 
they  would  only  be  snubbed  and  treated  as  colonists. "  l  They 
compromised  on  Ghent,  where  the  Americans  waited  long  and 
impatiently  for  the  British  delegates  to  arrive. 

On  March  8, 1813,  the  United  States  had  accepted  the  Russian 
offer  of  mediation  and  shortly  afterward  appointed  a  commission. 
One  year  and  five  months  later  the  three  British  commissioners 
reached  Ghent.  It  was  Lord  Gambier's  first  venture  in  diplo- 
macy; he  had  been  an  officer  in  the  navy.  Henry  Goulburn  was 
Under-Secretary  of  State  for  the  Colonies;  and  it  was  his  first 
essay  in  foreign  affairs.  And  William  Adams,  an  admiralty 
lawyer,  was  the  third,  whose  chief  claim  to  fame  was  that  he 
served  on  this  commission. 

They  were  instructed  to  insist  on  the  rule  of  uti  possidetis  as 

the  starting  point  of  the  negotiation.    This  point  furnished  the 

key  to  the  lengthy  delays  by  the  British.    Napoleon  had  been 

beaten  in  his  Russian  campaign  of  1812-13.    And  at  Leipzig, 

1  Diary  of  James  Gattaiin:  21. 


120  LEADING  AMERICAN  TREATIES 

October,  1813,  he  received  such  a  crushing  defeat  that  he  felt 
compelled  to  abdicate  and  retire  to  the  island  of  Elba  under  the 
provisions  of  the  first  peace  of  Paris,  May  13,  1814.  Great 
Britain  was  thus  left  largely  free  to  prosecute  the  war  against  the 
United  States.  She  had  sent  Wellington's  brother  in  law,  Paken- 
ham,  with  a  fine  body  of  veterans  from  the  campaign  in  Portu- 
gal and  Spain  to  take  New  Orleans.  General  Ross  with  his 
army  had  good  chances  of  success  against  Baltimore  and  Washing- 
ton. Sir  George  Prevost  in  Canada  was  receiving  large  rein- 
forcements; and  it  was  expected  that  a  large  part  of  Maine,  New 
Hampshire,  Vermont,  New  York,  and  the  territory  to  the 
south  of  the  Great  Lakes  would  be  added  to  Canada  by  this 
principle  of  military  possession.  Having  obtained  a  recognition 
by  the  Americas  of  the  rule  of  uti  possidetis,  the  English  com- 
missioners were  to  stipulate  that  the  Northwest  Territory  should 
be  set  aside  as  a  state  for  the  Indian  tribes;  this  state  would  serve 
the  advantage  of  a  buffer  state  as  well.  And  the  inshore  fisheries 
off  the  Canadian  and  Newfoundland  coasts  were  to  be  consid- 
ered as  forfeited  by  the  war.1 

The  American  commissioners  received  their  instructions  in 
two  groups:  those  of  April  15  and  27,  1813,  and  those  of  January 
28  and  30,  February  10  and  14,  and  March  22,  1814.  The  in- 
structions of  April  15,  1813  stated  that  as  soon  as  Great  Britain 
would  give  assurance  that  she  had  abandoned  the  principles  of 
impressment  and  of  paper  blockades  the  United  States  would 
order  a  cessation  of  hostilities.  The  definition  of  a  blockade 
announced  by  Great  Britain  in  1803  was  held  to  be  satisfactory: 
"  that  no  blockade  would  be  legal,  which  was  not  supported  by 
an  adequate  force  ..."  Other  points  of  less  importance  stressed 
a  recognition  of  the  right  to  trade  with  the  colonies  of  an  enemy 
of  Great  Britain,  and  agreement  upon  regulations  for  visit  and 
search,  restriction  on  the  list  of  contraband  goods,  prohibition 
on  British  trade  with  the  Indians  on  American  soil,  and  a  stipula- 
tion that  the  increase  of  American  naval  power  on  the  Great 
Lakes  would  meet  with  no  objection  from  Great  Britain.  There 
was  also  to  be  a  mutual  restoration  of  occupied  territory,  and  an 
1  Castlercagh,  Memoirs  and  Correspondence,  X.:  67. 


THE  TREATY  OF  GHENT,  1814  1 21 

effort  to  obtain  all  of  Canada.1  Secretary  Monroe's  letter  of 
April  27,  1813,  instructed  the  commissioners  that  if  the  subject 
of  claims  to  Florida  should  enter  the  discussions  the  claim  to 
West  Florida  should  be  based  on  the  cession  from  France  in  1803 
and  that  to  East  Florida  on  the  right  to  indemnity  for  spolia- 
tions.2 The  express  relinquishment  of  impressments  was  a  sine 
qua  non.3 

In  the  second  group  of  instructions,  beginning  with  the  letter 
of  January  28,  1814,  Monroe  stated  that  there  had  been  no 
change  in  American  sentiment  on  impressments.  "Our  flag 
must  protect  the  crew"  he  said.  Sailors  already  impressed 
should  be  paid  the  wages  by  Great  Britain  which  they  would 
have  earned  on  American  merchantmen.  Slaves  seized  by  the 
British  forces  should  be  either  returned  or  paid  for.  He  pointed 
out  that  it  would  do  away  with  friction  and  conform  with  the 
best  interests  of  both  parties  for  Great  Britain  to  cede  all  of 
Canada  to  the  United  States.4 

The  instruction  of  January  30,  1814,  mentioned  that  Great 
Britain  had  condemned  the  American  vessels  and  cargoes  in  her 
ports  at  the  opening  of  the  war,  while  the  United  States  had 
given  British  vessels  six  months  in  which  to  withdraw.  Compen- 
sation by  Great  Britain  should  therefore  be  conceded  in  the 
treaty.5  In  a  letter  dated  February  10,  1814,  Monroe  receded 
somewhat  from  his  firm  stand  on  a  recognition  of  neutral  rights 
and  permitted  the  commissioners  to  agree  to  a  provision  that 
the  United  States  in  the  matter  of  neutral  rights  should  be  given 
most  favored  nation  treatment.6  On  February  14,  1814,  Mon- 
roe grew  concerned  about  impressments  again,  fearing  no  doubt 
that  the  provision  for  most  favored  nation  treatment  in  the 
previous  despatch  was  too  general.  He  wanted  an  express 
renunciation  of  impressment  by  Great  Britain.  He  wrote:  "To 
withdraw  from  the  war  without  it,  would  be  to  subject  the 

1  American  State  Papers,  Foreign  Relations,  III.:  695. 

2  Gallatin,  Writings,  I.:  539. 
"Ibid.,  I.:  542. 

4 American  State  Papers,  Foreign  Relations,  III.:   701;  see  Updyke, 
Diplomacy  of  the  War  of  1812:  178. 
1  American  State  Papers,  Foreign  Relations,  III.:  702. 
•Ibid.,  III.:  703. 


122  LEADING  AMERICAN  TREATIES 

United  States  to  all  the  expense  in  blood  and  treasure  which  has 
been  and  may  be  incurred  without  obtaining  the  security  for 
which  we  have  contended.  ..."  And  in  the  last  letter, 
March  22,  1814,  Monroe  revealed  concern  not  about  a  possible 
failure  to  acquire  Canada  but  about  the  claims  which  the  British 
might  make  to  the  territory  south  of  the  then  northern  boundary 
of  the  United  States.  And  under  no  pretext  were  the  American 
commissioners  to  yield  or  to  recognize  British  claims  to  the 
Pacific  coast  near  the  Columbia  River.1 

The  two  commissions  met  at  one  o'clock  in  the  Hotel  des 
Pays-Bas  on  August  8,  1814.  The  members  exchanged  their  full 
powers.  Lord  Gambier  made  the  opening  speech  in  which  he 
hoped  for  a  restoration  of  amicable  relations.  John  Quincy 
Adams  responded  with  a  disposition  to  reciprocate  every  senti- 
ment of  candor  and  conciliation.  Henry  Goulburn  then  rose  and 
indicated  the  four  points  upon  which  the  British  commissioners 
had  been  instructed,  i.  Impressment  involved  the  claim  of  His 
Britannic  Majesty  to  the  allegiance  of  all  the  native  subjects  of 
Great  Britain.  2.  Peace  with  the  Indians  should  be  included 
and  a  definite  boundary  agreed  upon  for  their  territory.  This 
point  Goulburn  made  a  sine  qua  non.  3.  The  boundary  between 
the  United  States  and  the  adjacent  British  colonies  should  be 
revised;  and  4,  The  fishing  privileges  of  the  United  States  within 
British  jurisdiction  would  not  be  renewed  without  an  equiva- 
lent.2 

Adams  asked  whether  the  British  government  thought  it 
proper  to  discuss  impressment  and  British  allegiance.  Goulburn 
replied  that  his  government  did  not  think  it  necessary  but  had 
included  the  point  as  one  likely  to  arise.  Bayard  asked  what 
their  intention  was  in  revising  the  boundary.  Goulburn  said  they 
did  not  have  in  mind  the  acquisition  of  territory  but  the  removal 
of  causes  for  dispute.  Adams  reviewed  each  point  and  asked 
permission  to  confer  with  his  colleagues  before  making  a  reply. 
Goulburn  wanted  an  immediate  answer  as  to  whether  the 
American  instructions  permitted  negotiations  on  a  separate 

"Updyke,  Diplomacy  of  the  War  of  1812:  185. 

1  American  State  Papers,  Foreign  Relations,  III.:  705. 


THE  TREATY  OF  GHENT,  1814  123 

territory  for  the  Indians.  Adams  perf erred  not  to  reply;  where- 
upon the  conference  adjourned  until  eleven  o'clock  the  next 
day.1 

The  point  about  a  separate  territory  for  the  Indians  had 
considerable  significance  for  the  British,  because  the  fur  trade 
with  them  had  averaged  before  the  war  £250,000  in  value 
annually.  The  interest  in  the  British  American  inshore  fisheries 
had  grown  greatly  during  the  war;  and  the  people  of  Nova 
Scotia  had  petitioned  Lord  Bathurst  to  have  the  Americans 
excluded  in  the  f orthcoming  treaty. 

When  the  Americans  reached  their  rooms  they  found  two 
despatches  from  Secretary  Monroe,  dated  June  25  and  27, 
directing  the  commissioners  to  refuse  to  allow  the  fisheries  to  be 
brought  into  the  discussion,  and,  if  they  found  it  necessary, 
to  omit  impressments  altogether  from  the  treaty.  The  Secretary 
of  State  assumed  that  the  rights  to  the  fisheries  had  not  been 
abrogated  by  the  war. 

At  the  second  conference  Adams  stated  that  the  American 
commissioners  had  instructions  on  impressments  but  none  on  the 
second  point,  the  Indians.  However,  he  had  good  reason  for 
believing  that  peace  negotiations  with  the  Indians  had  already 
begun;  and  both  he  and  Gallatin  assured  the  British  that  peace 
with  the  Indians  would  quickly  follow  peace  with  Great  Britain. 
On  the  subject  of  the  boundaries,  Adams  stated  the  Americans 
had  instructions,  but  on  the  fisheries  they  had  none.  He  stated 
further  that  they  had  instructions  to  obtain  a  definition  of 
blockade,  an  agreement  on  neutral  and  belligerent  rights,  and  to 
secure  an  indemnity  for  captures  made  before  and  during  the 
war.  He  mentioned  also  that  there  were  numerous  other 
points  on  which  they  had  power  to  negotiate  either  in  the  treaty 
of  peace  or  in  a  separate  treaty  of  commerce.  On  the  second 
and  fourth  points,  the  separate  Indian  state  and  the  Newfound- 
land fisheries,  he  reiterated  that  the  British  could  not  expect  the 
Americans  to  have  instructions  for  they  were  in  no  way  connected 
with  the  causes  of  the  war.  The  British  commissioners  asked  if 
these  two  points  could  not  be  made  the  subject  of  an  arrangement 
1  J.  Q.  Adams,  Memoirs,  III.:  6. 


124  LEADING  AMERICAN  TREATIES 

subspe  rati.  The  Americans  thought  not.  The  British  stated 
that  they  could  not  go  beyond  their  instructions  and,  therefore, 
would  have  to  refer  the  whole  matter  back  to  the  Foreign  Office. 
The  Americans  proposed  that  a  protocol  should  be  kept  to 
which  the  British  agreed.1 

That  evening  Adams  drafted  a  protocol  which  Bayard,  Galla- 
tin,  and  Clay  revised.  The  next  day  the  two  commissions  met 
to  prepare  drafts.  The  British  objected  strenuously  to  the  Amer- 
ican draft  on  the  ground  that  it  was  too  explanatory  and  too 
argumentative.  The  Americans  yielded;  but  they  were  deter- 
mined that  if  the  negotiations  failed,  the  world  should  know  upon 
whom  the  responsibility  rested.  The  British  commissioners  sent 
a  messenger  to  London  to  find  out  whether  the  negotiations 
should  continue. 

Lord  Castlereagh,  himself,  brought  the  new  instructions  on 
August  18,  while  on  his  way  to  the  Congress  of  Vienna  via  Paris. 
At  the  next  conference  the  British  still  insisted  that  a  provi- 
sional article  on  the  Indian  state  should  be  inserted.  They  took 
up  next  the  subject  of  the  boundary.  The  United  States  should 
agree  not  to  keep  naval  forces  on  the  Great  Lakes  or  maintain 
or  build  any  fortifications  on  the  shores.  And  sufficient  territory 
should  be  ceded  in  Maine  to  allow  a  direct  line  of  communication 
between  Halifax  and  Quebec. 

The  Americans  spent  four  days  in  drafting  the  reply  to  these 
demands;  and  in  the  process  they  brought  out  the  fact  that  they 
had  more  differences  to  settle  among  themselves  than  with  the 
British.  Clay,  Russell,  and  Bayard  riddled  the  draft  drawn  by 
Adams,  which,  as  head  of  the  commission,  he  had  a  right  to 
make,  with  the  result  that  Gallatin,  the  ablest  of  them  all  but 
who  was  at  the  foot,  drafted  the  reply.  This  reply  stated  that 
the  Indians  could  not  be  considered  as  an  independent  people  and 
that  for  Great  Britain  to  do  so  would  be  a  violation  of  the  Treaty 
of  1783,  which  acknowledged  the  disputed  region  to  be  within 
the  boundaries  of  the  United  States.  The  Americans  did,  how- 
ever, concede  that  they  would  include  the  Indians  in  the  peace; 
which  was  eventually  done  in  Article  LX  of  the  treaty.  The 
'American  State  Papers,  Foreign  Relations,  III.:  705,  708. 


THE  TREATY  OF  GHENT,  1814  125 

restriction  on  the  military  defense  of  the  Great  Lakes  could  not 
be  accepted.  To  the  point  of  ceding  part  of  Maine  for  a  road 
between  Halifax  and  Quebec  the  American  commissioners 
stated  they  had  no  instructions  and  that  they  would  not  sub- 
scribe to  a  cession  of  any  part  of  the  territory  of  the  United 
States.  They  renewed  their  protest  that  the  propositions  made 
by  Great  Britain  had  no  relation  to  the  differences  between  the 
two  countries  and  that  they  had  no  foundation  in  the  principles 
of  uti  possidetis  or  of  status  quo  ante  bellum.  Instead  of  settling 
differences  these  propositions  gave  rise  to  new  ones.  At  the  end 
of  the  note  the  Americans  offered  to  negotiate  on  the  basis  of 
status  quo  ante  bellum  with  a  reservation  to  both  parties  of 
their  rights  pertaining  to  their  respective  seamen.1  The  reply 
was  sent  to  the  British  on  the  evening  of  August  25,  1814.  If 
cables  had  been  in  existence  both  parties  would  have  known  that 
General  Ross  had  taken  Washington  the  day  before.  But  their 
despair  of  concluding  a  treaty  could  hardly  have  been  greater. 
They  prepared  to  leave  by  the  end  of  the  month. 

As  before  the  British  commissioners  could  exercise  no  dis- 
cretionary powers  but  had  to  send  copies  of  the  American  reply 
to  Paris,  where  Castlereagh  and  Wellington  then  were,  and  to 
London,  where  Lord  Bathurst  had  been  given  supervision  over 
the  negotiations  at  Ghent.  Both  Castlereagh  and  Bathurst  felt 
irritated  because  the  Americans  had  been  so  deft  in  throwing  the 
responsibility  for  a  possible  rupture  in  the  negotiations  on  the 
British.  The  note  of  September  2  constituted  an  effort  to  shift 
that  responsibility.2  It  had  become  more  evident  daily  that  the 
British  people  wanted  complete  peace. 

The  American  commissioners  skilfully  refused  to  assume  re- 
sponsibility for  a  break;  and  by  their  arguments  made  the  burden 
doubly  heavy  on  the  British.3  The  note  of  September  9  was 
also  referred  to  the  British  government.  Lord  Bathurst  author- 
ized his  commissioners  to  abandon  the  demands  for  an  Indian 
state  and  for  the  exclusive  control  of  the  Great  Lakes.  This 

1  American  State  Papers,  Foreign  Relations,  III.:  711. 
2 Ibid.,  III.:  713. 
3  Ibid.,  III.:  715- 


126  LEADING  AMERICAN  TREATIES 

concession  made  the  Americans  feel  that  negotiations  had  seri- 
ously begun.  And  they  intimated  that  the  time  had  arrived 
for  an  exchange  of  projects  for  a  proposed  treaty.1  But  Lord 
Bathurst  was  not  yet  ready  for  such  a  move,  for  after  half  a 
dozen  minor  despatches  had  passed  back  and  forth  he  instructed 
his  commissioners,  October  18,  to  secure  a  recognition  of  the 
principle  of  uti  possidetis  as  a  basis  for  boundary  negotiations. 
He  instructed  them  also  to  omit  mention  in  the  treaty  of  natural- 
ization, impressments,  and  topics  relating  to  maritime  laws  if 
the  Americans  so  desired,  otherwise  Great  Britain  could  not 
yield  from  her  position  repeatedly  declared  on  these  points.  In 
their  reply  the  American  commissioners  rejected  the  principle  of 
uti  possidetis  categorically  and  substituted  that  of  status  quo 
ante  bellum,2  October  24,  1814. 

In  the  meantime,  the  temporary  capture  of  Washington  had 
stiffened  American  resistance.  The  British  had  been  defeated 
in  Canada.  Early  in  October  George  M.  Dallas  had  brought 
despatches  from  Ghent,  which  Secretary  Monroe  released.  The 
newspapers 3  expressed  themselves  unanimously  that  the  British 
terms  were  unendurable  and  advocated  a  vigorous  prosecution  of 
the  war.  The  demands  for  northern  territory  and  for  a  cancella- 
tion of  the  fishing  rights  roused  New  England  furiously.  The 
despatches  helped  to  give  Madison  a  united  country.  And  the 
later  news  of  that  fact  caused  Great  Britain  to  incline  favorably. 

In  their  note  of  October  31  the  British  stated  that  they  had  no 
further  points  to  consider  and  asked  the  Americans  to  present 
their  objections  and  "such  further  points  as  the  government  of 
the  United  States  consider  to  be  material. "  4  The  Americans 
took  this  to  be  a  suggestion  for  them  to  submit  a  project  of  a 
treaty.  And  with  the  task  of  drafting  this  project  they  battled 
for  the  next  ten  days.  Gallatin  and  Adams  prepared  complete 
drafts;  the  others  prepared  notes.  But  the  drafts  of  Gallatin  and 
Adams  became  basic  for  discussion.  Gallatin  provided  for  a 

'American  State  Papers,  Foreign  Relations,  III.:  723. 
«Ibid.,  III.:  725. 

1  Providence  Patriot,  October  24,  Philadelphia  Aurora,  October  24,  New 
York  Spectator,  October  29,  Norfolk  Ledger,  October  22,  1814. 
4 American  State  Papers,  Foreign  Relations,  III.:  726. 


THE  TREATY  OF  GHENT,  1814  127 

renewal  of  the  rights  to  the  fisheries  by  conceding  to  the  British 
the  free  navigation  of  the  Mississippi.  Clay  would  not  permit 
the  British  on  the  Mississippi;  the  exclusive  right  to  navigate 
that  river  was  far  more  important  than  the  fisheries.  Adams 
contended  as  ably  for  the  fisheries  as  his  father  had  done  in  1782; 
this  right  was  a  part  of  American  independence,  he  claimed,  and 
could  not  be  cancelled  by  war.  The  majority  of  the  commission 
favored  Gallatin's  article,  with  Clay  and  Russell  dissenting.  But 
Clay's  persistence  won  and  the  fisheries  were  left  out  except  for 
an  explanatory  clause  in  a  note  accompanying  the  draft  that  they 
were  "  not  authorized  to  bring  into  discussion  any  of  the  rights  or 
liberties  which  the  United  States  have  hitherto  enjoyed  in 
relation  thereto. "  The  boundary  line  west  of  the  Lake  of  the 
Woods  was  omitted.  Other  boundary  disputes  were  to  be  sub- 
mitted to  commissions.  The  principle  of  the  status  quo  ante 
bellum  was  inserted.  And  so  was  a  provision  prohibiting 
impressment  and  excluding  from  the  merchant  marine  service  of 
either  party  persons  belonging  to  the  other.  A  legal  blockade 
was  defined.  Indemnities  were  provided  for,  those  for  captures 
and  condemnations  made  in  violation  of  the  law  of  nations  before 
the  war  were  to  be  paid  by  Great  Britain,  and  those  made 
after  the  war  began  were  to  be  examined  by  a  commission 
and  paid  by  either  party  in  accordance  with  the  findings.1 
The  British  commissioners  sent  this  project  to  London  the 
next  day. 

During  this  ten  day  period  the  Cabinet  had  urged  the  Duke  of 
Wellington  to  take  command  of  the  British  forces  in  Canada.  He 
replied:  "I  have  already  told  you  (Lord  Liverpool)  and  Lord 
Bathurst  that  I  feel  no  objection  to  going  to  America,  though  I 
don't  promise  to  myself  much  success  there. "  Another  sentence 
from  the  same  reply:  "That  which  appears  to  me  to  be  wanting 
in  America  is  not  a  general,  or  a  general  officer  and  troops,  but  a 
naval  superiority  on  the  Lakes. "  Commenting  on  the  negotia- 
tions at  Ghent  he  wrote:  "Why  stipulate  for  the  uti  possidetis? 
You  can  get  no  territory;  indeed,  the  state  of  your  military 
operations,  however  creditable,  does  not  entitle  you  to  demand 
1  American  State  Papers,  Foreign  Relations,  III.:  733. 


128  LEADING  AMERICAN  TREATIES 

any. "  l  Wellington's  letter  was  dated  at  Paris,  November  9.  On 
November  18  the  Cabinet  decided  to  abandon  the  claim  to  terri- 
tory. 

The  British  commissioners  replied  to  the  American  project  of 
a  treaty  on  November  26.  They  made  no  mention  of  the  fisher- 
ies, but  they  stipulated  for  the  old  right  of  navigating  the  Miss- 
issippi. Adams  favored  immediate  acceptance,  but  Clay  would 
rather  have  no  treaty  at  all  than  accept  this  provision.  Gallatin 
then  brought  forth  his  proposition  that  the  right  to  navigate  the 
Mississippi  be  conceded  if  the  British  would  expressly  recognize 
the  old  right  to  fish.  Clay  lost  his  temper  and  pronounced  the 
whole  "a  damned  bad  treaty. "  2  But  after  three  days  Gallatin 
dominated.  And  the  renewal  of  both  rights  was  proposed  to  the 
British.3 

Bathurst  instructed  the  British  commissioners  to  propose  that 
both  subjects  be  left  to  future  negotiation.4  This  implied  that 
both  rights  had  been  cancelled  by  the  war;  something  which 
Adams  could  not  admit.  But  he  found  himself  alone;  which  for 
an  Adams  meant  a  redoubling  of  energy,  with  the  result  that  the 
American  commissioners  agreed  to  make  another  effort  to  have 
the  British  concede  that  the  Treaty  of  1783  should  govern  the 
right  to  the  fisheries  or  at  least  agree  not  to  mention  them.  Due 
to  the  ability  and  the  patience  of  the  American  commissioners 
the  British  had  been  driven  to  concede  point  after  point.  So 
Lord  Bathurst  consented  to  omit  all  mention  of  the  fisheries  and 
of  the  navigation  of  the  Mississippi.5 

It  has  been  frequently  remarked  that  the  treaty  of  Ghent 
settled  nothing.  This  is  largely  true  so  far  as  the  causes  of  the 
war  were  concerned.  But  a  summary  of  the  treaty  shows  that 
considerable  was  accomplished;  and  another  summary  will  show 
that  the  presentation  of  divergent  views  at  Ghent  in  1814  greatly 
facilitated  future  negotiations. 

Article  I  provided  for  the  cessation  of  hostilities  on  the 

1  Wellington,  Supplementary  Despalaches,  I.:  426. 

»J.  Q.  Adams,  Diary,  III.:  118. 

1  American  State  Papers,  Foreign  Relations,  III.:  742. 

4  Castlereagh,  Correspondence,  X.:   214. 

•Ibid.,  X.:  221. 


THE  TREATY  OF  GHENT,  1814  129 

exchange  of  ratifications  and  for  the  mutual  restoration  of  terri- 
tory, records,  and  property,  including  slaves  captured  on  land. 
This  article  was  brought  into  dispute  by  Great  Britain  refusing  to 
order  her  naval  commanders  to  deliver  the  slaves  which  had  been 
received  on  board  her  war  vessels.  The  matter  was  submitted  to 
the  Czar  of  Russia,  who  decided  in  favor  of  the  interpretation 
made  by  the  United  States,  I822.1  And  in  1826  Great  Britain 
agreed  to  pay  an  indemnity  of  $1,204,960. 

Article  II  provided  for  a  mutual  restoration  of  prizes  taken 
after  a  specified  time,  which  varied  with  the  length  of  tune 
necessary  to  inform  war  vessels  in  different  parts  of  the  world. 

Article  III  provided  for  the  mutual  restoration  of  prisoners 
of  war.  The  United  States  took  this  to  mean  that  cost  of  trans- 
portation should  be  borne  by  the  party  that  held  the  prisoners. 
This  caused  delay  which,  in  turn,  led  the  Americans  at  Dartmoor 
prison  to  revolt.  British  troops  fired  indiscriminately  at  them 
and  killed  many  before  order  was  restored.  The  United  States 
finally  accepted  the  offer  of  Great  Britain  that  the  transportation 
costs  should  be  borne  jointly  by  the  two  states. 

The  injection  of  the  argument  on  uti  possidetis  and  status 
quo  ante  bellum  caused  the  commissioners  on  both  sides  to  make 
an  effort  to  settle  boundary  disputes.  They  provided  for  refer- 
ence to  a  commission  in  each  of  four  sectors.  Article  IV  dealt 
with  the  disputed  islands  in  the  Bay  of  Passamaquoddy.  John 
Holmes,  American,  and  Thomas  Barclay,  British,  made  up  this 
commission.  They  decided  in  1817  that  Moose  Island,  Dudley 
Island,  and  Frederick  Island  belonged  to  the  United  States  and 
that  all  the  others  in  dispute  belonged  to  Great  Britain.2  Not 
until  1892  was  provision  made  for  marking  this  boundary. 

Article  V  covered  the  stretch  from  the  source  of  the  St. 
Croix  to  the  river  St.  Lawrence.  C.  P.  Van  Ness  for  the  United 
States  and  Thomas  Barclay  were  appointed.  They  failed  to 
agree.  The  matter  was  submitted  to  the  King  of  the  Netherlands 
for  arbitration  in  1828,  but  he  went  beyond  his  powers  as  stated 

1  Moore,  International  Arbitrations,  I.:  360. 

2  Malloy,  Treaties,  I.:  619.    See  Rives,  Correspondence  of  Thomas  Barclay, 
chap.  VIII. 


130  LEADING  AMERICAN  TREATIES 

in  the  convention;  and,  hence,  the  United  States  refused  to  be 
bound  by  the  award.  The  controversy  was  finally  settled  by 
the  Webster-Ashburton  Treaty. 

Article  VI  provided  for  a  third  boundary  commission  to 
determine  the  line  through  the  St.  Lawrence,  the  lakes  Ontario, 
Erie,  Huron,  and  the  connecting  rivers.  Peter  B.  Porter  for 
the  United  States  and  John  Ogilvy,  and  later  Anthony  Barclay, 
for  Great  Britain  were  appointed.  They  reached  an  agreement 
on  June  18,  1822. l 

Article  VII  provided  for  the  determination  of  the  boundary 
from  Lake  Huron  to  the  northwestern  point  of  the  Lake  of  the 
Woods.  This  was  left  to  Porter  and  Anthony  Barclay.  They 
failed  to  agree.  The  matter  was  later  settled  by  the  Webster- 
Ashburton  Treaty. 

Article  VHI  provided  for  the  filling  of  vacancies,  filing  of 
reports,  and  so  on,  in  connection  with  the  boundary  commissions. 

Article  LX  provided  for  mutual  peace  with  the  Indians,  if 
the  red  men  were  willing,  on  the  exchange  of  ratifications. 

Article  X  expressed  what  had  come  to  be  pronounced  British 
sentiment  in  favor  of  suppressing  the  slave  trade.  The  article 
stated:  "It  is  hereby  agreed  that  both  the  contracting  parties 
shall  use  their  best  endeavors  to  accomplish  so  desirable  an 
object."  Congress  had  already  in  1807  forbidden  the  importa- 
tion of  African  slaves;  but  the  trade  continued  in  a  small  and 
clandestine  manner.  Congress  acted  again  on  May  15,  1820,  by 
declaring  slave  trading  to  be  piracy,  punishable  with  the  death 
penalty.  This  did  not  help  greatly  because  the  United  States 
refused  to  permit  the  merchantmen  that  flew  her  flag  to  be 
visited  and  searched  by  foreign  war  vessels.  The  slave  trade 
appeared  again  in  the  Webster-Ashburton  negotiations. 

On  Christmas  Eve,  1814,  the  commissioners  signed  the  treaty 
in  triplicate.  The  treaty  reached  London  on  December  26,  and 
while  there  were  some  mutterings  in  the  press  that  the  members 
of  the  cabinet  had  humbled  themselves  and  discredited  the 
country,  yet  the  satisfaction  was  general  that  the  war  was  over. 
On  March  9,  1815,  two  news  items  silenced  all  criticism;  Jackson 
1  M alloy,  Treaties,  I.:  620. 


THE  TREATY  OF  GHENT,  1814  131 

had  defeated  General  Pakenham  at  New  Orleans  and  Napoleon 
was  making  a  triumphal  return  towards  Paris  from  the  Island  of 
Elba. 

A  copy  of  the  treaty  reached  Washington  on  February  14, 
1815.  That  evening  Madison  considered  the  treaty  with  his 
cabinet.  The  next  day  he  sent  it  to  the  Senate.  And  on  that 
same  day  the  Senate  approved  it  by  a  unanimous  vote.  On  Feb- 
ruary 17  the  ratifications  were  exchanged  between  Mr.  Baker, 
the  British  agent,  and  Secretary  Monroe.  On  February  18,  the 
President  proclaimed  the  treaty.  The  market  responded  imme- 
diately. In  New  York  brown  sugar  fell  from  $26  to  $12.50  a 
hundred  pounds;  tea  from  $2.25  to  $i  a  pound;  tin  from  $80  to 
$25  a  box.  Cotton  fabrics  declined  50  per  cent.  Specie  dropped 
from  22  per  cent,  to  2  per  cent,  above  par.  Wheat,  cotton,  and 
tobacco  rose  rapidly.  All  in  all  the  Treaty  of  Ghent  was  the  most 
popular  agreement  the  United  States  has  ever  made,  and  the 
news  of  the  victory  at  New  Orleans,  January  8, 1815,  contributed 
to  that  end.  That  victory  meant  that  Great  Britain  would 
respect  the  principles  for  which  the  United  States  went  to  war. 
It  was  therefore  of  small  consequence  whether  they  were  included 
in  the  treaty  or  not. 

The  United  States  had  not  obtained  a  renunciation  of  im- 
pressments; but  Great  Britain  never  assumed  to  exercise  it  again; 
and  the  last  mention  of  the  subject  was  made  by  Webster  in  1842. 
Blockade  was  not  defined;  and  when  it  finally  was  in  the  Declara- 
tion of  Paris,  1856,  the  United  States  revealed  slight  desire  to 
ratify.  Mutual  respect  for  naturalization  processes  was  obtained 
by  the  Clarendon-Motley  Convention  of  1870;  but  ever  since  the 
War  of  1812  Great  Britain  has  respected  the  principle  that  the 
flag  covers  the  crew.  The  American  right  to  the  inshore  fisheries 
off  Newfoundland  was  renewed  by  the  Treaty  of  1818. 

At  Ghent  nothing  had  been  done  with  commerce  and  naviga- 
tion; although  the  American  commissioners  had  expressed  a 
willingness  to  negotiate.  These  two  subjects  were  reserved  for  a 
special  convention,  signed  at  London,  July  3, 1815.  J.  Q.  Adams, 
Clay,  and  Gallatin  represented  the  United  States.  F.  J.  Robin- 
son, H.  Goulburn,  and  William  Adams  represented  Great  Britain. 


132  LEADING  AMERICAN  TREATIES 

Robinson  had  replaced  Gambler  at  the  head  of  the  British 
commission;  and  he  was  a  man  of  quite  different  qualifications. 
He  was  vice-president  of  the  committee  of  the  privy  council  for 
trade  and  plantations,  and  he  had  accompanied  Castlereagh 
during  the  recent  negotiations  at  Paris.  Later  he  and  Huskisson 
cooperated  in  favor  of  a  reduction  of  import  duties  and  of  the 
removal  of  restrictions  on  navigation.  He  treated  the  American 
commissioners  with  courtesy  and  sympathy. 

As  for  trade  with  the  United  Kingdom  the  British  commission- 
ers conceded  quickly  that  there  should  be  a  reciprocal  liberty  of 
commerce  between  the  two  countries  and  that  ships  and  cargoes 
belonging  to  the  nationals  of  either  party  should  be  given  per- 
mission to  enter  the  ports  and  rivers  to  which  other  foreigners 
were  permitted  to  come.  They  conceded  also  that  discriminat- 
ing duties  on  tonnage  and  merchandize  should  be  mutually 
abolished.1  Gallatin  declared  afterward  that  this  was  the  only 
portion  of  the  treaty  that  was  of  value;2  which  reveals,  no  doubt, 
what  his  attitude  would  have  been  on  such  a  measure  as  the 
merchant  marine  act  of  1920. 

There  were  three  other  groups  of  questions  which  the  Ameri- 
cans wanted  to  settle.  The  first  one  related  to  the  right  to  trade 
with  the  British  provinces  on  the  northern  frontier  of  the  United 
States  and  that  included  the  free  navigation  of  the  St.  Lawrence 
River.  The  second  group  of  questions  related  to  the  opening  of 
direct  trade  with  the  British  West  Indies  and  to  the  right  to 
carry  goods  between  the  British  West  Indies  and  Nova  Scotia. 
Robinson  recognized  the  fairness  of  the  American  argument  on 
thesejquestions;  but  the  cabinet  was  not  yet  prepared  nor  were  the 
merchants  of  Great  Britain  ready  to  give  up  the  mercantile 
colonial  system.  The  United  States  had  to  engage  in  a  series 
of  embargoes  on  Canadian  and  West  Indian  goods  brought  in 
British  vessels,  and  in  tariff  and  tonnage  duties'  wars  before 
Great  Britain  became  convinced  of  the  folly  of  her  position.  The 
two  countries  reached  an  informal  agreement  in  1830,  which  was 
just  as  effectual  as  a  treaty;  and  it  has  worked  well  ever  since. 

•American  State  Papers,  Foreign  Relations,  IV.:  8,  11. 
*  Gallatin,  Writings,  I.:  665. 


THE  TREATY  OF  GHENT,  1814  133 

Great  Britain  by  an  order  in  council  and  the  United  States  by 
an  act  of  Congress,  May  29,  1830,  removed  the  old  restrictions; 
and  thus  permitted  American  vessels  to  engage  in  trade  with  the 
British  colonies  anywhere,  and  this  applied  to  trade  between  the 
colonies  as  well.  But  British  vessels  were  not  and  never  have 
been  permitted  to  engage  in  the  American  coastwise  trade. 

The  third  group  of  questions  which  the  Americans  wanted  to 
settle  at  London  related  to  the  East  Indian  trade.  Direct 
intercourse  only  was  obtained.  American  ships  and  cargoes, 
however,  were  granted  most  favored  nation  treatment  in  the 
East  Indian  ports.1  The  convention  of  1815  was  concluded  for 
only  four  years,  but  it  was  renewed  for  ten  years  in  1818,  and 
extended  indefinitely  in  1827  until  the  merchant  marine  act  of 
1920  caused  its  denunciation  by  the  United  States. 

In  the  negotiations  at  Ghent,  the  English  had  attempted  to 
bar  the  Americans  from  keeping  any  ships  of  war  on  the  Great 
Lakes  or  to  maintain  any  fortifications  on  the  shores  thereof. 
This  the  Americans  virtually  conceded  in  the  Rush-Bagot  agree- 
ment of  1817  on  the  condition  that  Great  Britain  should  do 
likewise.2  Each  party  could  maintain  on  Lake  Ontario  one 
vessel  not  exceeding  one  hundred  tons  burden,  armed  with  one 
eighteen  pound  cannon;  on  the  three  upper  lakes  two  such 
vessels;  and  on  Lake  Champlain  one  such  vessel.  Of  some 
consequence  industrially  is  the  fact  "  that  no  other  vessels  of  war 
shall  be  there  built  or  armed. "  3  This  has  prevented  the  ship- 
yards on  the  Great  Lakes  from  competing  hi  the  building  of  war 
vessels  with  the  yards  on  the  seaboard.  But  the  whole  conven- 
tion is  an  excellent  example  of  what  good  faith  between  two 
nations,  unsupported  by  military  force,  can  achieve. 

In  the  end,  then,  the  United  States  had  to  yield  on  only  one 
point  which  she  had  hoped  to  secure  at  Ghent  and  that  was 
indemnity  for  the  captures  of  American  ships  and  goods  under 
the  orders  in  council.  Great  Britain  yielded  on  point  after 
point  at  Ghent  and  continued  to  do  so  down  through  the  century 

1  See  Treaty  in  Malloy,  Treaties,  I.:  624. 

*  J.  M.  Cailahan,  Agreement  of  1817,  Am.  Hist.  Assoc.  Report,  1895  -.3(19. 

s  Malloy,  Treaties,  I.:  628. 


134  LEADING  AMERICAN  TREATIES 

much  to  the  promotion  of  solidarity  among  the  English  speaking 
peoples  of  the  world. 

BIBLIOGRAPHY 

ADAMS,  HENRY. — History  of  the  United  States,  volumes  III — IX.     New 

York,  1903-1904. 

ADAMS,  HENRY. — Life  of  Albert  Gallatin.     Philadelphia,  1879. 
ADAMS,  J.  Q. — Memoirs,  12  volumes.    Edited  by  Charles  Francis  Adams. 

Philadelphia,  1874-1877. 
ADAMS,  J.  Q. — Writings,  7  volumes.    Edited  by  W.  C.  Ford,  New  York 

1913-1917. 
American  State  Papers,  Foreign  Relations.     Volume  III.     Washington, 

1832. 

BAYARD,  JAMES  A. — "Papers"     Report  of  American  Historical  Associa- 
tion, 1913.    Volume  II. 
CALLAHAN,  J.  M. — The  Neutrality  of  the  American  Lakes  and  Anglo-American 

Relations.   J.  H.  U.  Studies,  Series  XVI  numbers  1-4. ;  Baltimore, 

1898. 
CASTLEREAGH,  VISCOUNT. — Memoirs  and  Correspondence  of  Robert  Stewart, 

Viscount  Casttereagh,  12  volumes.     London,  1851-1853. 
CHANNING,  EDWARD. — History  of  the  United  States.     Volume  IV.     New 

York,  1917. 
CLAY,  HENRY. — Works.    Edited  by  C.  Colton,  10  volumes.    New  York, 

1904. 
GALLATIN,  ALBERT. — Writings,   3   volumes.     Edited   by   Henry   Adams. 

Philadelphia. 

GALLATIN,  JAMES. — Diary.     New  York,  1916. 
HUNT,  GAILLARD. — Life  in  America  One  Hundred  Years  Ago.    New  York, 

1914. 
LAMSON,  CAPTAIN  ZACHARY  G. — Autobiography,    (Introduction    by   O.   T. 

Horoe).    (Good  account  of  commercial  troubles  leading  to  War  of 

1812). 
LYMAN,  THEODORE. — The  Diplomacy  of  the  United  States.      Volume  II. 

Boston,  1828. 
MAHAN,  A.  T. — The  Influence  of  Sea  Power  upon  the  French  Revolution  and 

Empire,  2  volumes.    Boston,  1898. 

MAHAN,  A.  T. — Sea  Power  in  Us  Relation  to  the  War  of  1812.    Boston,  1905. 
M  ALLOY,  W.  M. — Treaties,   1776-1909.     Volume  I.     Washington,  1910. 
MOORE,  J.  B. — International  Arbitrations,  6  volumes.     Washington,  1898. 
PHILLIMORK,  JOSEPH. — Reflections  on  the  Nature  and  Extent  of  the  License 

Trade.     London,  1811. 

RIVES,  GEORGE  L. — Correspondence  of  Thomas  Barclay.    New  York,  1804. 
SCOTT,  MICHAEL. — Tom  Cringle's  Log.     New  York,  1895. 
UPDYKB,  F.  A. — The  Diplomacy  of  the  War  of  1812.    Baltimore,  1915. 


THE  TREATY  OF  GHENT,  1814  135 

WALPOLE,  SPENCEH. — Life  of  Spencer  Perceval,  2  volumes.    London,  1874. 
WELLINGTON,  DUKE  OF — Supplementary  Despatches,  and  Memoranda,   15 

volumes.    Edited  by  his  son. 
BARING,  A. — Inquiry  into  the  causes  and  consequences  of  the  orders  in  council 

and  an  examination  of  the  conduct  of  Great  Britain  towards  the  neutral 

commerce  of  America.    London,  1808. 


CHAPTER  VH 
THE  CONVENTION  OF  1818  WITH  GREAT  BRITAIN 

"We  thought  it  safer  to  err  on  our  own  side  of  the  question,  and  to  ask 
for  more  than  perhaps  under  all  circumstances  we  expected  to  obtain,  rather 
than  to  limit  our  demands  to  less  than  might  be  intended  by  our  Govern- 
ment."— GALLATIN  AND  RUSH  TO  J.  Q.  ADAMS. 

This  convention  is  one  of  the  shortest  and  also  one  of  the 
most  important  to  which  the  United  States  has  become  a 
party.  It  has  five  provisions;  the  two  minor  may  be  disposed 
of  quickly.  Article  DC  renewed  for  a  ten  year  period  the  com- 
mercial convention  of  July  3,  1815.  In  1827  this  same  conven- 
tion was  renewed  for  an  indefinite  period  and  was  in  effect 
until  the  merchant  marine  act  of  1920  caused  its  denunciation. 
By  Article  V  the  two  parties  agreed  to  submit  for  arbitration  to  a 
friendly  power  whether  Article  I  of  the  Treaty  of  Ghent  included 
the  restoration  of  the  slaves  received  on  board  English  war 
vessels.  The  two  parties  agreed  later  upon  the  Czar  of  Russia, 
who  decided  in  favor  of  the  United  States.  The  three  major 
provisions  related  to  the  northeastern  fisheries,  the  boundary 
from  the  Lake  of  the  Woods  to  the  Rocky  Mountains,  and  to  the 
joint  occupation  of  the  Oregon  country  for  a  ten  year  period. 

Even  before  the  Treaty  of  1783  the  fisheries  had  shown  them- 
selves to  be  of  international  importance.  The  trade  and  naviga- 
tion acts  of  1764  and  1775  had  for  their  purpose  to  limit  New 
England  trade  to  the  United  Kingdom  and  the  British  West 
Indies,  to  cut  off  the  great  fish  trade  with  France,  Holland, 
Spain,  and  Portugal,  and  to  stop  all  fishing  on  the  banks  of 
Newfoundland.  Men  from  the  four  northern  colonies  testified 
repeatedly  before  the  House  of  Commons  that  the  fisheries 
furnished  the  life  blood  of  New  England.  Massachusetts  claimed 
that  the  loss  of  the  fisheries  would  deprive  of  the  means  of  living 
six  thousand  of  her  fishermen  and  would  compel  ten  thousand  of 
her  other  citizens  to  find  employment  elsewhere.  Rhode  Island 

136 


CONVENTION  OF  1818  WITH  GREAT  BRITAIN          137 

pointed  out  that  of  14,000  hogshead  of  molasses  imported  into 
that  colony  in  one  year  only  2500  were  of  British  production,  and 
that  molasses  produced  within  British  dominion  could  not  sup- 
ply the  needs  of  the  distillers  of  that  little  colony.  Consequently 
the  duty  on  molasses  should  be  lowered,  the  right  to  fish  off  the 
Newfoundland  banks  should  be  continued,  and  the  right  to 
transport  fish  to  be  used  in  exchange  for  foreign  commodities, 
especially  molasses,  should  be  unlimited.  The  restrictions  on  the 
fisheries  assisted  materially  in  bringing  on  the  Revolution.  And 
after  the  war  had  begun  the  leading  question  which  Vergennes 
asked  of  Silas  Deane  before  French  aid  could  be  granted  was 
whether  the  revolutionary  forces  could  maintain  themselves 
without  the  fisheries.1  During  the  war  Congress  expressed 
time  and  again  its  anxieties  about  preserving  the  ancient  fishing 
privileges.2  Although  Congress  weakened  in  July,  1781,  by 
resolving  that  an  equality  with  Englishmen  in  the  fisheries  need 
not  be  a  sine  qua  non  in  the  peace  negotiations;  yet  John  Adams 
used  utmost  zeal  in  securing  the  fishing  rights  in  the  Treaty  of 

1783- 

Article  III  of  the  Treaty  of  1783  specified  that  "the  people  of 
the  United  States  shall  continue  to  enjoy  unmolested  the  right 
to  take  fish  of  every  kind  on  the  Grand  Bank,  and  on  all  other 
banks  of  Newfoundland;  also  in  the  Gulf  of  St.  Lawrence,  and 
at  all  other  places  in  the  sea  where  the  inhabitants  of  both 
countries  used  at  any  time  heretofore  to  fish. "  In  other  words, 
the  deep  sea  fisheries  outside  the  three  mile  limit  came  within  the 
scope  of  a  right  of  the  American  people;  while  the  next  two  pro- 
visions of  this  article  came  within  the  scope  of  a  liberty  of  the 
American  people.  "And  also  that  the  inhabitants  of  the  United 
States  shall  have  liberty  to  take  fish  of  every  kind  on  such  part 
of  the  coast  of  Newfoundland  as  British  fishermen  shall  use  (but 
not  to  dry  or  cure  the  same  on  the  island)  and  also  on  the  coasts, 
bays,  and  creeks  of  all  other  of  His  Britannic  Majesty's  domin- 
ions in  America. "  This  second  provision  specified  the  "  liberty  " 
to  the  inshore  fisheries;  and  the  third  provision  specified  the 

1  Wharton,  Diplomatic  Correspondence  of  the  American  Revolution,  II.:  115. 

2  Journals  of  the  Continental  Congress,  V.:  771;  VI.:  1056;  XII. :  1041. 


138  LEADING  AMERICAN  TREATIES 

"liberty"  to  dry  and  cure  fish  on  certain  shores:  "and  that 
American  fishermen  shall  have  liberty  to  dry  and  cure  fish  in  any 
of  the  unsettled  bays,  harbours,  and  creeks  of  Nova  Scotia, 
Magdalen  Islands,  and  Labrador,  so  long  as  the  same  shall 
remain  unsettled;  but  so  soon  as  the  same  or  either  of  them  shall 
be  settled,  it  shall  not  be  lawful  for  the  said  fishermen  to  dry  or 
cure  fish  at  such  settlements,  without  a  previous  agreement  for 
that  purpose  with  the  inhabitants,  proprietors  or  possessors 
of  the  ground."1 

During  the  succeeding  years  the  fishing  industry  declined 
until  hi  1789  the  estimate  was  an  average  yearly  earning  for 
each  vessel  of  $273  with  an  average  yearly  expenditure  of  $416. 
Congress  came  to  the  relief  of  the  industry  with  a  bounty  on 
fish  and  a  subsidy  on  vessels.  But  the  French  revolution  and  the 
Napoleonic  wars  greatly  stimulated  the  industry  so  that  by  1801 
the  people  of  Nova  Scotia  and  Newfoundland  protested  to 
Parliament  that  the  Yankees  were  ruining  them.  But  Jefferson's 
long  embargo  gave,  in  turn,  relief  to  the  British  colonists.  And 
the  War  of  1812  made  these  colonists  doubly  eager  to  obtain  the 
inshore  fisheries  as  a  monopoly.2  In  New  England  the  feeling 
was  just  as  strong  on  the  other  side;  the  cry  became  "No  peace 
without  the  fisheries. "  But  Henry  Clay's  constituents  claimed 
that  "peace  was  better  than  codfish. " 

The  Treaty  of  Ghent  said  nothing  about  the  fisheries.  The 
understanding  among  the  British  negotiators  was  that  the  War 
of  1812  had  abrogated  the  two  "liberty"  clauses  in  Article  III 
of  the  Treaty  of  1783.  The  understanding  among  the  American 
negotiators  was,  with  a  reservation  by  Gallatin,  that  the  whole 
of  Article  III  carried  with  it  a  permanent  character  and  could 
not  be  affected  by  war.  They  thought  it  would  be  advantageous 
to  have  a  continuation  of  the  right  expressed  in  the  Treaty  of 
Ghent,  but  there  was  no  necessity  for  such  action. 

However,  the  British  government  and  the  people  of  New- 
foundland and  Nova  Scotia  quickly  adopted  the  understanding 
of  the  British  negotiators.  In  July  of  1815  an  American  codfish- 

'Malloy,  Treaties,  I.:  588. 

'Niks'  Weekly  Register,  June  n,  1814. 


CONVENTION  OF  x8i8  WITH  GREAT  BRITAIN  139 

ing  vessel  entered  the  port  of  Barnstable  with  the  following 
endorsement  on  its  license:  "Warned  off  the  coast  by  His 
Majesty's  sloop  Jaseur,  not  to  come  within  sixty  miles.  N. 
Lock,  Captain."  l  This  endorsement  had  been  made  while 
the  vessel  was  lying  forty-five  miles  off  the  coast  of  Nova 
Scotia.  Other  vessels  were  ordered  off  in  a  similar  manner. 
The  State  Department  protested  to  Lord  Bathurst,  who  ex- 
plained in  due  tune  that  the  action  of  the  British  naval 
officer  was  unauthorized.  But  the  catch  for  that  season  had 
been  lost. 

President  Madison  sent  America's  ablest  man  on  the  fisheries 
as  minister  to  London,  John  Quincy  Adams.  No  one  in  Wash- 
ington thought  it  would  be  necessary  to  endow  Adams  with  full 
power  to  negotiate  a  treaty.  Adams  reviewed  the  negotiations 
at  Ghent  before  Bathurst  and  Castlereagh;  and  he  argued 
American  rights  so  ably  and  pertinaceously2  that  those  two 
gentlemen  felt  quite  relieved  to  find  that  he  had  no  full  power  to 
negotiate  an  agreement,  and,  therefore,  they  transferred  the 
negotiations  on  that  subject  to  Mr.  Bagot,  the  British  minister 
in  Washington.  Bagot  evinced  a  conciliatory  disposition  and 
negotiated  directly  with  Monroe  as  Secretary  of  State  and  later 
as  President.  Monroe  acknowledged  that  some  concessions  on 
the  provisions  of  Article  III,  1783,  could  and  would  be  made. 
Meanwhile,  President  Monroe  decided  that  he  needed  the  ser- 
vices of  John  Quincy  Adams  as  Secretary  of  State  and  appointed 
Richard  Rush,  who  had  been  Acting  Secretary,  as  American 
minister  to  London.  The  result  was  that,  under  the  circum- 
stances, the  British  would  rather  negotiate  in  London. 

During  the  summer  of  1817  several  incidents  occurred  which 
made  action  necessary.  On  May  12,  1817,  Rear  Admiral  Sir 
David  Mime  at  Bermuda  had  issued  an  order  to  the  ships  under 
his  command  to  seize  all  foreign  vessels  fishing  or  at  anchor 
within  His  Majesty's  North  American  provinces  and  send  them 
to  Halifax  for  adjudication.  The  Americans  had  been  in  the 
habit  of  going  within  the  three  mile  limit  to  procure  bait,  wood, 

1  American  State  Papers,  Foreign  Relations,  IV.:  349. 

2  Ibid.,  IV.:  352. 


140  LEADING  AMERICAN  TREATIES 

and  water,  and  to  clean  their  fish.  They  were  sent  to  Halifax 
in  such  numbers  that  the  saying  "Gone  to  Halifax"  became  a 
byword.  Frequently  these  vessels  were  condemned  and  had  to 
give  bond,  pending  an  appeal  to  the  vice-admiralty  court  in 
London.1  On  August  4,  1817,  twenty  American  fishing  vessels 
sought  refuge  from  a  storm  in  the  harbor  of  Ragged  Island  and 
were  compelled  to  pay  light  dues,  which  was  contrary  to  what 
the  Americans  termed  their  rights. 

By  May,  1818,  Castlereagh  displayed  eagerness  to  renew 
the  commercial  convention  of  1815.  Such  unexampled  readiness 
by  the  Foreign  Office  caused  Rush  to  be  suspicious,  but  he 
advised  the  State  Department  that  the  occasion  be  used  to 
settle  the  outstanding  differences.  Monroe  transferred  Gallatin 
from  Paris  temporarily  to  assist  Rush  in  the  negotiations.  Secre- 
tary Adams  wrote  to  Gallatin  and  Rush,  July  28,  1818:  "The 
President  authorizes  you  to  agree  to  an  article  whereby  the 
United  States  will  desist  from  the  liberty  of  fishing,  and  curing 
and  drying  fish,  within  the  British  jurisdiction  generally,  upon 
condition  that  it  shall  be  secured  as  a  permanent  right,  not  liable 
to  be  impaired  by  any  future  war,  from  Cape  Ray  to  the  Rameau 
Islands,  and  from  Mount  Joli,  on  the  Labrador  coast,  through 
the  strait  of  Bellisle,  indefinitely  north,  along  the  coast;  the  right 
to  extend  as  well  to  curing  and  drying  the  fish  as  to  fishing. "  2 

Gallatin  and  Rush  succeeded  in  acquiring  far  more  than 
this  right  to  fish  and  to  dry  fish  on  the  Labrador  coast  and 
on  the  western  one-third  of  the  southern  coast  of  Newfoundland. 
In  addition  it  was  provided  that  the  inhabitants  of  the  United 
States  might  forever  catch  fish  on  the  shores  of  the  Magdalen 
Islands  and  along  the  entire  west  coast  of  Newfoundland  from 
Cape  Ray  to  Quirpon  Island.  The  "liberty"  "forever"  to  cure 
fish  was  limited  to  the  unsettled  bays,  harbors,  or  creeks  of 
Labrador  above  Mount  Joli  and  of  the  south  coast  of  Newfound- 
land from  Cape  Ray  to  Rameau  Islands.  An  immense  amount 
of  discussion  centered  on  the  words  "liberty"  and  "forever." 
Gallatin  and  Rush  preferred  "right"  to  "liberty"  but  Robinson 

•American  State  Papers,  Foreign  Relations,  VI.:  369. 
'Ibid.,  IV.  =  378. 


CONVENTION  OF  1818  WITH  GREAT  BRITAIN  141 

and  Goulburn  had  the  advantage  of  pleading  the  wording  in 
Article  III  of  the  Treaty  of  1783.  The  British  objected  strenu- 
ously to  the  use  of  the  word  "forever,"  but  the  Americans 
declared  they  would  not  agree  to  the  article  at  all  unless  the 
word  were  inserted  three  times.1 

The  liberty  of  fishing  or  drying  fish  forever  renounced  "within 
three  marine  miles  of  any  of  the  coasts,  bays,  creeks,  or  har- 
bors" not  above  mentioned  was  inserted  for  the  purpose  of 
making  it  clear  that  the  liberties  acquired  by  this  treaty  were 
not  new  ones  and  that  express  renunciation  was  necessary.2 
It  was  agreed  that  American  fishermen  could  enter  any  harbor 
or  bay  for  shelter,  repairs,  wood,  and  water,  but  "for  no  other 
purpose  whatever." 

The  British  attempted  to  revive  their  treaty  right  to  navigate 
the  Mississippi;  but  were  unsuccessful. 

It  was  likewise  agreed  that  nothing  in  the  article  should  be 
considered  prejudicial  to  "the  exclusive  rights  of  the  Hudson 
Bay  Company."  Gallatin  and  Rush's  comment  on  this  clause 
is  of  interest  as  regards  the  "liberty"  to  the  fisheries  and  also  as 
regards  Canada's  occasional  claim  to  exclusive  jurisdiction  over 
Hudson  Bay  as  a  closed  sea.  "To  the  exception  of  the  exclusive 
rights  of  the  Hudson  Bay  Company  we  did  not  object,  as  it  was 
virtually  implied  in  the  treaty  of  1783,  and  we  had  never,  any 
more  than  the  British  subjects,  enjoyed  any  right  there;  the 
charter  of  that  company  having  been  granted  in  the  year  1670. 
The  exception  applies  only  to  the  coasts  and  their  harbors,  and 
does  not  affect  the  right  of  fishing  in  Hudson  Bay  beyond  three 
miles  from  the  shores,  a  right  which  would  not  exclusively  belong 
to,  or  be  granted  by,  any  nation. "  3 

Gallatin  and  Rush  made  a  curious  mistake  in  assuming  that 
the  cod  and  halibut  fishing  beyond  the  three  marine  miles  off 
Nova  Scotia  were  the  only  valuable  fisheries  there.  It  has 
turned  out  since  that  the  mackerel  fisheries  have  been  equally 
valuable,  and  that  the  schools  of  mackerel  take  refuge  under 

1  R.  Rush,  Residence  at  the  Court  of  London:  334. 

2  American  State  Papers,  Foreign  Relations,  IV. :  380. 
JIbid.,  IV.:  380. 


142  LEADING  AMERICAN  TREATIES 

the  Treaty  of  1818.  The  temptation  to  follow  the  mackerel 
within  the  three  mile  limit  has  caused  numerous  seizures  of 
American  fishing  vessels  by  Canadian  revenue  cutters  and  even 
by  British  war  vessels.  At  times  the  governments  of  the  United 
States  and  Great  Britain  have  had  to  use  great  tact  to  avoid 
hostilities, — notably  so  in  1852. 

The  first  article  of  the  Treaty  of  1818  regulates  the  inshore 
fisheries  at  present.  For  about  twenty  years  few  misunder- 
standings concerning  the  treaty  arose.  From  March  16, 1855,  to 
March  17,  1866,  the  Elgin-Marcy  reciprocity  treaty  revived  for 
American  fishermen  their  old  rights  under  the  Treaty  of  1783. 
Except  for  these  two  periods,  1818  to  1836  and  1855  to  1866,  the 
first  article  of  the  Treaty  of  1818  has  been  subjected  to  constant 
dispute  and  contention  until  the  decision  of  the  Hague  tribunal 
made  the  meaning  clear  in  1910. 

Without  analyzing  the  various  projects  of  treaties,  modi 
vivendi,  and  measures  of  retaliation  intended  to  bring  about  a 
settlement  of  disputes,  it  will  be  sufficient  to  state  that  on  Janu- 
ary 27,  1909,  it  was  agreed  to  submit  the  whole  matter  to  the 
Hague  Court  for  arbitration.  Five  eminent  jurists  were  chosen 
to  sit  on  the  bench:  Dr.  H.  Lammasch  of  Austria,  Jonkheer  A. 
F.  de  Savornin  Lohman  of  the  Netherlands,  Dr.  Luis  M.  Drago 
of  Argentina,  Sir  Charles  Fitzpatrick  of  Canada,  and  Mr. 
George  Gray  of  the  United  States.  Seven  questions  were  pre- 
sented to  this  court  for  decision. 

The  first  question  resolved  itself  into  two  parts:  a.  "Whether 
the  right  of  regulating  reasonably  the  liberties  conferred  by  the 
Treaty  of  1818  resides  in  Great  Britain. "  b.  "And  if  such  right 
does  so  exist,  whether  such  reasonable  exercise  of  the  right  is 
permitted  to  Great  Britain  without  the  accord  and  concurrence 
of  the  United  States." 

A  few  examples  will  show  the  purport  of  these  questions. 
Newfoundland  Statutes,  39  Victoria,  ch.  6,  sect.  4,  provided 
"No  person  shall,  between  the  hours  of  twelve  o'clock  on 
Saturday  night  and  twelve  o'clock  on  Sunday  night,  haul  or 
take  any  herring,  caplin  or  squids,  with  nets,  seines,  bunts, 
or  any  such  contrivance.  ..."  And  the  next  year  this  act  was 


CONVENTION  OF  1818  WITH  GREAT  BRITAIN         143 

amended  to  "  include  and  apply  to  the  jigging  of  squids,  and  to 
the  use  of  any  contrivance  whatever,  and  to  any  mode  of  taking 
and  obtaining  fish  for  bait."  J  Americans  claimed  this  regula- 
tion to  be  an  unreasonable  interference  with  their  right  to 
fish  within  the  three  mile  limit  on  the  treaty  coast.  The 
Newfoundland  Sabbath  had  not  been  provided  for  in  the  treaty. 
The  British  claimed  that  the  regulation  was  reasonable  and 
designed  to  promote  public  order  and  morality.  Other  regula- 
tions prescribed  minutely  where  and  during  what  seasons  seines 
or  other  means  of  fishing  might  or  might  not  be  used  and  pre- 
scribed the  size  of  the  meshes  of  nets.  Occasionally  these 
regulations  were  changed  suddenly  so  that  the  American  fisher- 
men could  not  know  about  them.  The  British  claimed  that 
these  regulations  were  for  the  protection  and  preservation  of 
fish  and  also  equitable  and  fair  as  between  local  fishermen  and 
the  inhabitants  of  the  United  States  exercising  their  liberty 
under  the  treaty.  The  Americans  claimed  that  these  regulations 
were  designed  to  discriminate  against  them  and  were  in  violation 
of  their  treaty  rights. 

The  tribunal  decided  that  the  words  "  in  common  with  British 
subjects"  meant  that  the  inhabitants  of  the  United  States 
were  admitted  to  a  regulated  fishery;2  that,  therefore,  Great 
Britain  had  a  right  to  make  and  to  enforce  regulations.  But 
in  reply  to  the  second  part  of  the  question  whether  the  reasonable 
exercise  of  the  right  was  permitted  to  Great  Britain  without  the 
concurrence  of  the  United  States,  the  tribunal  decided  that 
whatever  may  have  been  the  situacion  under  the  Treaty  of  1818, 
standing  alone,  Great  Britain  had  repeatedly  recognized  in 
practice  that  there  were  limitations  on  the  exercise  of  the  right 
of  regulating,  bounded  by  reason.  In  accordance  with  its  power 
under  the  agreement,  submitting  the  whole  dispute  to  arbitra- 
tion, the  tribunal  created  a  commission  of  experts  on  fisheries  and 
called  on  each  party  to  designate  one  commissioner  from  its  own 
nationals.  As  the  third  non-national  commissioner  the  tribunal 
designated  Dr.  P.  P.  C.  Hoik  of  the  Netherlands  to  act  as  umpire. 

1  North  Atlantic  Coast  Fisheries  Arbitration,  L:  181. 

2  Foreign  Relations,  1910:  549. 


144  LEADING  AMERICAN  TREATIES 

This  commission  was  to  pass  upon  the  reasonableness  of  British 
fishing  regulations  and  to  hear  objections  advanced  by  the 
United  States.1  On  the  first  question,  then,  both  parties  could 
claim  a  victory. 

Question  two.  "Have  the  inhabitants  of  the  United  States, 
while  exercising  the  liberties  referred  to  in  said  article,  a  right  to 
employ  as  members  of  the  fishing  crews  of  their  vessels  persons 
not  inhabitants  of  the  United  States?" 

Great  Britain  claimed  that  the  treaty  conferred  the  liberty 
to  fish  on  the  inhabitants  of  the  United  States  exclusively.  But 
the  tribunal  decided  that  the  inhabitants  of  the  United  States 
had  a  right  to  employ  as  members  of  their  fishing  crews  on 
American  vessels  persons  not  inhabitants  of  the  United  States. 
However,  these  non-inhabitants  so  employed  could  derive  no 
benefit  or  immunity  from  the  treaty.2  The  United  States  won 
the  decision  on  this  point. 

Question  three.  "Can  the  exercise  by  the  inhabitants  of 
the  United  States  of  the  liberties  referred  to  in  the  said  article 
be  subjected,  without  the  consent  of  the  United  States,  to  the 
requirements  of  entry  or  report  at  custom  houses  or  the  payment 
of  light  or  harbor  or  other  dues  or  to  any  other  similar  require- 
ment or  condition  or  exaction?" 

This  question  related  to  the  liberty  to  take  fish  and  to  dry 
and  cure  fish  on  the  treaty  coasts  specified  in  1818  and  therefore 
could  not  apply  to  the  privileges  of  commercial  vessels.  The 
United  States  argued  for  a  complete  exemption  for  her  fishing 
vessels.  The  tribunal  based  its  decision  on  the  words  "in  com- 
mon with  the  subjects  of  His  Britannic  Majesty;"  hence  Ameri- 
can fishing  vessels  would  have  to  pay  the  same  light  and  harbor 
dues  as  those  imposed  on  Newfoundland  fisherman.  But  "the 
inhabitants  of  the  United  States  should  not  be  subjected  to  the 
purely  commercial  formalities  of  report,  entry,  and  clearance  at  a 
customhouse,  nor  to  light,  harbor,  or  other  dues  not  imposed 
upon  Newfoundland  fishermen. "  3  However,  Newfoundlanders 

1  Foreign  Relations,  1910:  556-7. 
*Ibid.,  1910:  559. 
1  Ibid.,  1910:  560. 


CONVENTION  OF  1818  WITH  GREAT  BRITAIN          145 

had  been  generally  exempt;  so  that  the  decision  on  this  point 
might  be  considered  as  a  victory  for  the  United  States. 

Question  four,  epitomized.  Must  American  fishing  vessels 
pay  light  or  harbor  or  other  dues  or  report  at  custom  houses  in 
order  to  enter  for  shelter,  repairs,  wood,  and  water? 

The  tribunal  stated:  "And  it  is  decided  and  awarded  that 
such  restrictions  are  not  permissible."  The  court  explained 
that  the  right  of  entry  for  the  four  above  purposes  constituted 
in  large  measure  those  duties  of  hospitality  and  humanity  which 
all  civilized  nations  impose  upon  themselves  and  expect  the 
performance  of  from  others.  But  if  American  fishermen 
remained  more  than  forty-eight  hours,  they  should  report  to  a 
customs  official,  "if  reasonably  convenient  opportunity  therefor 
is  afforded. "  l 

Question  five.  "From  where  must  be  measured  the  'three 
marines  miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors' 
referred  to  in  the  said  article?" 

The  United  States  claimed  that  all  bays,  creeks,  or  harbors 
six  miles  or  less  wide  might  be  considered  closed,  but  all  those 
wider  than  six  miles  should  be  considered  open  sea.  The  tribunal 
concluded  that  no  evidence  had  been  furnished  which  proved 
that  the  application  of  the  three  mile  rule  to  bays  was  present 
in  the  minds  of  the  negotiators  in  1818  and  that  they  could  not 
reasonably  have  been  expected  either  to  presume  it  or  to  provide 
against  its  presumption.  In  answering  this  question,  then,  the 
tribunal  recognized  established  usage  and  it  took  into  considera- 
tion especially  the  practice  of  Great  Britain  in  maintaining  her 
jurisdiction  in  these  bays  and  also  the  practice  of  other  countries 
in  recognizing  such  enforcement  of  jurisdiction  in  the  bays  in 
question  by  Great  Britain.  The  tribunal  found  also  that  Article 
IV  of  the  special  agreement  in  regard  to  the  arbitration 
provided  that  the  judges  should  keep  hi  mind  the  removal 
of  future  differences.  Therefore,  the  tribunal  announced  the 
headland  to  headland  theory  with  the  provision  that  those 
bays  which  were  ten  miles  or  less  in  width  should  be  considered 
closed.  "  In  every  bay  not  hereinafter  specifically  provided  for 
1  Foreign  Relations,  1910:  561. 


146  LEADING  AMERICAN  TREATIES 

the  limits  of  exclusion  shall  be  drawn  3  miles  seaward  from  a 
straight  line  across  the  bay  in  the  part  nearest  the,entrance  at  the 
first  point  where  the  width  does  not  exceed  10  miles. "  *  Dr. 
Luis  Drago  gave  a  dissenting  opinion  on  this  question,  based 
chiefly  on  the  renunciatory  provision  of  the  Treaty  of  1818. 
Great  Britain  won  the  decision  on  this  point.2 

Question  six.  "Have  the  inhabitants  of  the  United  States 
the  liberty  under  the  said  article  or  otherwise  to  take  fish 
in  the  bays,  harbors,  and  creeks  on  that  part  of  the  southern 
coast  of  Newfoundland  which  extends  from  Cape  Ray  to  Rameau 
Islands,  or  on  the  western  and  northern  coast  of  Newfoundland 
from  Cape  Ray  to  Quirpon  Islands,  or  on  the  Magdalen  Is- 
lands?" 

Great  Britain  contended  that  American  fishermen  had  no 
such  liberty.  The  tribunal  held  that  the  word  "coast"  in  the 
treaty  included  harbors,  bays,  and  creeks.  On  this  point  the 
United  States  won. 

Question  seven.  "Are  the  inhabitants  of  the  United  States 
whose  vessels  resort  to  the  treaty  coasts  for  the  purpose  of  exer- 
cising the  liberties  referred  to  hi  Article  I  of  the  Treaty  of  1818 
entitled  to  have  for  those  vessels,  when  duly  authorized  by  the 
United  States  hi  that  behalf,  the  commercial  privileges  on  the 
treaty  coasts  accorded  by  agreement  or  otherwise  to  United 
States  trading  vessels  generally?" 

The  tribunal  answered  this  question  affirmatively,  with  the 
qualification  that  American  fishing  vessels  "cannot  at  the 
same  time  and  during  the  same  voyage  exercise  their  treaty 
rights  and  enjoy  then-  commercial  privileges,  because  treaty 
rights  and  commercial  privileges  are  submitted  to  different  rules, 
regulations,  and  restraints."3 

This  arbitration  settled  remarkably  well,  if  not  perfectly, 
the  long  and  vexed  dispute  between  the  United  States  and  Great 
Britain  on  behalf  of  her  two  North  American  dominions. 

The  second  major  dispute  settled  by  the  Treaty  of  1818  was 

1  Foreign  Relations,  1910:  566. 
*  Ibid.,  1910:  569. 
3  Ibid.,  1910:  569. 


CONVENTION  OF  1818  WITH  GREAT  BRITAIN          147 

the  northern  boundary  from  the  Lake  of  the  Woods  to  the 
Rocky  Mountains.  The  Treaty  of  1783  provided  that  this 
boundary  should  run  from  the  northwestern  point  of  the  Lake  of 
the  Woods  to  the  source  of  the  Mississippi  River,  then  supposed 
to  be  in  British  America.  Jay's  Treaty  provided  for  a  joint  sur- 
vey of  the  Mississippi  but  this  survey  was  never  made.  Monroe 
and  Pinkney  during  their  negotiations  in  London  in  1806  had 
offered  to  take  a  line  running  north  and  south  through  the  north- 
western corner  of  the  Lake  of  the  Woods  and  on  the  intersection 
of  that  line  by  the  forty-ninth  parallel,  run  the  boundary  along 
that  parallel  to  the  "Stony  Mountains."  This  was  the  bound- 
ary adopted  in  Article  II  of  the  Treaty  of  1818. 

The  third  and  last  major  dispute  partially  settled  by  the 
Treaty  of  1818  related  to  the  Oregon  country.  Gallatin  and 
Rush  proposed  an  extension  of  the  boundary  from  the  Rocky 
Mountains  along  the  forty-ninth  parallel  to  the  Pacific  Ocean. 
They  said:  "We  did  not  assert  that  the  United  States  had  a 
perfect  right  to  that  country,  but  insisted  that  their  claim  was  at 
least  good  against  Great  Britain.  The  forty-ninth  degree  of 
north  latitude  had,  hi  pursuance  of  the  treaty  of  Utrecht,  been 
fixed,  indefinitely,  as  the  line  between  the  northern  British 
possessions  and  those  of  France,  including  Louisiana,  now  a  part 
of  our  territories. "  l 

But  the  British  negotiators  were  not  ready  to  reach  an  agree- 
'ment  on  the  definitive  disposition  of  the  territory  in  that 
region.  They  had,  as  they  considered,  good  claims  to  the 
whole  region  down  to  the  Columbia  River.  These  claims  were 
based  on  the  explorations  of  the  coast  by  Captain  Cook  in  1778 
and  by  Mackenzie  and  Vancouver  in  1793,  on  the  settlements  at 
Nootka  Sound  on  the  western  coast  of  Vancouver  Island,  rec- 
ognized by  Spain  in  the  Nootka  Sound  Convention  of  1790,  on 
purchases  made  from  the  Indians,  and  on  trading  posts  estab- 
lished by  the  Hudson  Bay  Company.2 

The  Americans  had  similar  and,  what  seemed  to  them,  better 
claims  to  the  region.  Captain  Gray  had  entered  and  explored 

1  American  State  Papers,  Foreign  Relations,  IV.:  381. 

2  Ibid.,  IV.:  381. 


148  LEADING  AMERICAN  TREATIES 

the  Columbia  River  in  1792,  the  year  before  Vancouver  had 
appeared.  Lewis  and  Clark  had  entered  the  region  from  the 
east  and  explored  it  in  Jefferson's  first  administration.  When 
these  two  explorers  returned  to  St.  Louis  in  1806,  Manuel  Lisa, 
Pierre  Chouteau,  and  Governor  William  Clark  organized  the 
Missouri  Fur  Company.  Within  two  years  this  company  had 
established  the  earliest  known  posts  on  the  upper  Missouri  and 
in  the  region  drained  by  the  Columbia  and  its  tributaries. 

John  Jacob  Astor  of  New  York  organized  the  Pacific  Fur 
Company  and  brought  into  his  employment  Americans  familiar 
with  the  fur  trade  and  Canadians  and  Scotchmen  long  in  the 
service  of  the  British  fur  trading  interests.  They  established 
their  headquarters  at  the  mouth  of  the  Columbia  in  March,  1811, 
and  named  the  place  Astoria.  The  British  acquired  the  property 
of  the  Pacific  Fur  Company  during  the  War  of  181 2.  But  Article 
I  of  the  Treaty  of  Ghent  provided  for  restoration  without  delay 
of  all  territory  and  places  taken  by  either  party  during  or  after 
the  war.  Due  to  the  slowness  of  means  of  communication  and  of 
mental  slowness  as  well  the  Americans  did  not  retake  possession 
of  Astoria,  with  Lord  Bathurst's  consent,  until  October  6,  1818. 
This  was  just  two  weeks  before  the  Treaty  of  1818  was  signed. 
So  that  the  American  argument  as  well  as  the  trend  of  events 
sustained  the  recognition  of  American  supremacy  on  the  Colum- 
bia River. 

However,  the  proposal  of  Rush  and  Gallatin  to  extend  the 
boundary  along  the  forty-ninth  parallel  to  the  Pacific  Ocean 
met  with  a  counter  project  from  Robinson  and  Goulburn. 
This  project  specified  substantially  what  was  afterward  agreed 
to  in  the  treaty,  that  the  country  "claimed  by  either  party 
on  the  northwest  coast  of  America,  westward  of  the  Stony 
Mountains,  shall,  together  with  its  harbors,  bays,  and  creeks, 
and  the  navigation  of  all  rivers  within  the  same,  be  free  and 
open,  for  the  term  of  ten  years  from  the  date  of  the  signature  of 
the  present  convention,  to  the  vessels,  citizens,  and  subjects 
of  the  two  Powers. "  This  was  agreed  to  with  the  reservation 
that  the  treaty  should  be  construed  without  prejudice  to  the 
claims  of  either  party  in  that  region. 


CONVENTION  OF  1818  WITH  GREAT  BRITAIN         149 

The  so-called  joint  occupation  of  Oregon  continued  until 
the  Treaty  of  1846,  which  embodied  the  proposal  made  by 
Gallatin  and  Rush  in  1818.  Great  Britain  secured  the  free 
navigation  of  the  Columbia  River.  The  United  States  agreed 
to  recognize  the  possessory  rights  of  the  Hudson  Bay  Company 
and  of  British  subjects.1 

A  dispute  arose  later  about  the  channel  between  Vancouver 
Island  and  the  mainland.  San  Juan  is  an  island  which  divides 
this  channel,  so  that  the  question  became:  which  branch  of  the 
channel  is  the  boundary  to  follow.  The  United  States  claimed 
that  the  western  arm  or  the  Haro  Channel  was  the  channel 
intended  by  the  treaty,  because  it  was  the  larger  and  the  deeper. 
Great  Britain  contended  for  the  other  arm  or  the  Rosario 
Channel.  American  citizens  and  British  subjects  had  settled  on 
San  Juan.  Armed  conflict  threatened.  General  Scott  succeeded 
in  preventing  a  collision.  But  the  dispute  dragged  on  until  in 
the  Treaty  of  Washington,  1871,  the  two  parties  agreed  to 
submit  the  matter  to  the  German  Emperor  for  arbitration.  He 
decided  in  favor  of  the  American  claim.2 

Other  matters  discussed  in  the  negotiations  at  London  in 
1818  were:  impressment,  blockade,  contraband,  the  right  of 
Americans  to  navigate  the  St.  Lawrence,  and  trade  with  the 
British  West  Indies.  No  agreement  could  be  reached,  although 
the  British  commissioners  argued  in  a  much  more  liberal  manner 
than  ever  before.  It  should  be  stated  also  that  Gallatin 
admitted  to  John  Quincy  Adams  that  the  critical  situation  with 
Spain  in  respect  to  Florida  made  Rush  and  himself  more  anxious 
to  reach  a  settlement  with  Great  Britain  than  they  otherwise 
would  have  been.3 

1Malloy,  Treaties,  I.:  656. 

2 Moore,  International  Arbitrations,  I.:  227. 

3  Gallatin,  Writings,  II.:  84. 


150  LEADING  AMERICAN  TREATIES 

BIBLIOGRAPHY 

ADAMS,  HENRY. — Life  of  Albert  Gallatin.    Philadelphia,  1879. 

ADAMS,  J.  Q. — Memoirs,  1 2  volumes.    Edited  by  Charles  Francis  Adams. 

Philadelphia,  1874-77. 
ADAMS,  J.  Q. — Writings,  7  volumes.    Edited  by  W.  C.  Ford.    New  York, 

1913-1917. 

American  State  Papers,  Foreign  Relations,  IV.:  348-407.    Washington,  1834. 
Foreign  Relations  of  the  United  States,  1910.    Washington,  1915. 
GALLATIN,  ALBERT. — The  Oregon  Question,  1846.    Writings,  III.:  491-536. 
LYMAN,  THEODORE. — The  Diplomacy  of  the  United  States,  1778-1828.    Vol. 

II.     Boston,  1828. 
Proceedings  in  the  North  Atlantic  Coast  Fisheries  Arbitration,  1910;  1 2  volumes 

Washington,  1912. 
RUSH,  RICHARD. — i.  Narrative  of  a  Residence  at  the  Court  of  London,  1817- 

1825.    London,  1833.     2.  Occasional  Productions,  etc.,  Philadelphia, 

1860. 
WILSON,  G.  G. — The  Hague  Arbitration  Cases:  134-205.     North  Atlantic 

Coast  Fisheries.    Boston,  1915. 


CHAPTER  VIII 
THE  FLORIDA  PURCHASE,  1819 

"As  there  is  no  court  of  chancery  between  nations  their  differences  can 
be  settled  only  by  agreement  or  by  force.  The  resort  to  force  is  justifiable 
only  when  justice  cannot  be  obtained  by  negotiation;  and  the  resort  to  force 
is  limited  to  the  attainment  of  justice.  The  wrong  received  marks  the 
boundaries  of  the  right  to  be  obtained." — JOHN  QUINCY  ADAMS. 

Florida  had  been  Spanish  from  the  days  of  Ponce  de  Leon 
to  the  Treaty  of  Paris,  1763.  That  treaty  closed  what  hi 
America  was  called  the  French  and  Indian  War;  but  it  had  been 
a  European  war  as  well,  with  Spain  fighting  as  an  ally  of  France. 
During  that  war  Great  Britain  had  captured  Havanna,  with 
which  Spain  in  the  peace  negotiations  would  not  part.  Conse- 
quently, she  ceded  Florida  to  Great  Britain  in  return  for  the  best 
port  in  the  Antilles. 

During  the  latter  part  of  the  American  Revolution  France 
and  Spain  fought  Great  Britain  again.  Under  the  terms  of 
the  peace  negotiations  at  Paris,  Great  Britain  ceded  Florida 
back  to  Spain.  In  the  treaty  between  the  United  States  and 
Great  Britain,  the  second  article  provided  that  the  southern 
boundary  of  the  United  States  should  run  from  the  middle  of 
the  Mississippi  River  along  the  thirty-first  parallel  to  the  middle 
of  the  Apalachicola,  thence  midstream  to  the  junction  with  the 
Flint  River,  and  then  straight  to  the  head  of  the  St.  Mary's 
River  and  down  the  middle  of  the  St.  Mary's  to  the  Atlantic. 
Thomas  Pinckney's  treaty  with  Spain,  1795,  incorporated  this 
same  southern  boundary  provision  in  its  second  article. 

Because  of  the  increasing  number  of  American  settlers  near 
the  rivers  that  flowed  into  the  Gulf  of  Mexico  and  of  their  need 
to  use  those  rivers  to  float  their  products  to  a  market,  Adams 
and  especially  Jefferson  grew  anxious  to  acquire  the  Floridas. 
Jefferson  directed  the  Secretary  of  State,  Madison,  to  in- 
struct Charles  Pinckney  at  Madrid  to  sound  Spain  on  the 


152  LEADING  AMERICAN  TREATIES 

possibility  of  acquiring  New  Orleans  and  the  Floridas.  If  this 
proposition  should  fail  to  meet  with  favor,  he  was  empowered  to 
negotiate  for  the  free  navigation  of  the  Mobile,  the  Chattahoo- 
chee,  and  other  rivers  running  through  the  Floridas.1  But 
Pinckney  could  obtain  no  definite  statement  from  the  Spanish 
ministers,  not  even  as  to  whether  West  Florida  was  included  in 
the  secret  Treaty  of  St.  Ildefonso,  1800. 

Meanwhile,  Madison  had  instructed  Livingston  at  Paris  to 
obtain  what  information  he  could  from  Talleyrand.  Talleyrand 
gave  him  to  understand  that  the  Floridas  were  not  included  in 
the  cession.  Jefferson  decided  to  appoint  Monroe  to  join  with 
Livingston  as  a  commission  extraordinary  to  treat  with  Napoleon 
at  Paris,  and  he  authorized  Monroe  to  join  with  Pinckney  as  a 
similar  commission  to  treat  at  Madrid.  Madison  wrote  to 
both  Pinckney  and  Livingston,  February  23,  1803,  stating  that 
the  object  of  Monroe's  instructions  would  be  to  procure  a 
cession  of  New  Orleans  and  the  Floridas  to  the  United  States.2 
Before  Pinckney  received  this  letter  he  had  made  a  strong 
effort  at  Madrid  to  obtain  a  reply  to  his  proposition  on  New 
Orleans  and  the  Floridas.  In  the  conference  which  followed, 
Cevallos  informed  Pinckney  that  Louisiana  had  been  ceded  to 
the  French,  including  the  town  of  New  Orleans.  Shortly  after- 
ward, May  4,  1803,  Cevallos  stated  that  Spain  would  not  dis- 
possess herself  of  any  territory  hi  favor  of  the  United  States. 
And  he  referred  the  United  States  to  France  in  the  following 
words:  "  By  the  retrocession  made  to  France  of  Louisiana,  that 
power  regains  the  said  province  with  the  limits  it  had  saving  the 
rights  acquired  by  other  powers.  The  United  States  can  ad- 
dress themselves  to  the  French  government  to  negotiate  the 
acquisition  of  territories  which  may  suit  their  interest.3 

Madison  had,  March  2,  1803,  instructed  Livingston  and 
Monroe  to  obtain  from  France  "  the  two  Floridas,  the  Island  of 
Orleans.  .  .  . "  4  The  course  of  these  negotiations  with  Marbois 
has  been  described  in  chapter  V.  Livingston  and  Monroe  knew 

'American  State  Papers,  Foreign  Relations,  II.:  515,  517. 
'Ibid.,  II.:  535,  537. 
•Ibid,  II.:  557. 
«Ibid.,  II.:  540. 


THE  FLORIDA  PURCHASE,  1819  153 

and  Marbois  knew  that  West  Florida  was  not  included  in  the 
Louisiana  Purchase.  Scarcely  had  the  treaty  been  signed  when 
a  new  chain  of  thought  occurred  to  Livingston.  West  Florida 
to  the  river  Perdido  belonged  to  the  United  States.  Without 
knowing  it  Napoleon  had  a  good  title  to  West  Florida  and  he 
had  sold  that  region  to  America.  Why?  Did  not  the  first 
article  of  the  Treaty  of  1803  stipulate  that  the  French  Republic 
ceded  forever  and  in  full  sovereignty  the  province  of  Louisiana, 
and  quoting  from  the  Treaty  of  St.  Ildefonso,  "with  the  same 
extent  that  it  now  has  in  the  hands  of  Spain,  and  that  it  had  when 
France  possessed  it;  .  .  ."?  Of  course  Spain  had  always  held 
East  Florida.  But  had  not  France  from  the  beginning  claimed 
as  Louisiana  all  of  the  Mississippi  Valley  up  to  the  Appalachian 
mountain  system,  down  along  the  Perdido  River  to  the  Gulf  of 
Mexico?  This  possession  lasted  until  1763,  when  France  among 
other  cessions  ceded  West  Florida  to  Great  Britain  with  the 
Iberville  River  as  the  western  boundary.  In  1783  it  was  ceded 
back  to  Spain,  and  from  then  on  Spain  held  West  Florida  and 
Louisiana.  Therefore,  the  words  in  the  Treaty  of  St.  Ildefonso 
meant  that  Bonaparte  might  have  claimed  West  Florida;  and 
since  he  transferred  all  of  his  rights  to  the  United  States,  all  that 
the  United  States  had  to  do  was  to  make  good  the  claim.  Said 
Livingston  in  his  report  to  Madison,"  .  .  .  insist  upon  this  as  a 
part  of  your  right,  and  to  take  possession  at  all  events  to  the 
river  Perdido.  I  pledge  myself  that  your  right  is  good. "  l 

Madison  and  Jefferson  were  delighted  to  accept  Livingston's 
interpretation.  Madison  wrote  back  to  Livingston,  March  31, 
1804:  "It  is  not  denied,"  by  Spain,  "that  the  Perdido  was  once 
the  east  limit  of  Louisiana.  It  is  not  denied  that  the  territory 
now  possessed  by  Spain  extends  to  the  river  Perdido.  The 
river  Perdido  we  may  say  then  is  the  limit  to  the  east  extent  of 
Louisiana  ceded  to  the  United  States.  This  construction  gives 
an  obvious  and  pertinent  meaning  to  the  term  'now'  and  to  the 
expression  'in  the  hands  of  Spain,'  which  can  be  found  in  no 
other  construction. "  2 

1  American  State  Papers,  Foreign  Relations,  II.:  561. 
'Ibid.,  II.:  575- 


'154  LEADING  AMERICAN  TREATIES 

And  Congress  accepted  Livingston's  interpretation  with  al- 
acrity. On  February  24,  1804,  an  act,  championed  by  John 
Randolph,  was  passed,  providing  for  "  laying  and  collecting  duties 
on  Imports  and  the  Tonnage  within  the  territory  ceded  to  the 
United  States  by  the  Treaty  of  April  30,  1803."  The  eleventh 
section  of  this  act  authorized  the  President  "whenever  he  shall 
deem  it  expedient  to  erect  the  Shores,  Waters  and  Inlets  of  the 
Bay  and  River  Mobile  and  of  the  other  Rivers,  Creeks,  Inlets 
and  Bays  emptying  into  the  Gulf  of  Mexico,  east  of  the  said 
River  Mobile  and  west  thereof  to  the  Pascagoula,  inclusive, 
into  a  separate  District  and  to  establish  such  place  within  the 
same,  as  he  shall  deem  expedient,  to  be  the  Port  of  Entry  and 
Delivery  for  such  District.  .  . "  l 

The  Spanish  minister  in  Washington,  d'Yrujo,  took  a  copy  of 
this  act  with  him  to  the  Secretary  of  State  and  objected  strenu- 
ously, March  7,  1804.  Said  he:  "The  authority  given  to  the 
president  is  unlimited,  east  of  the  River  Mobile,  and  compre- 
hends indirectly  the  power  of  declaring  or  rather  making  war 
since  it  is  not  to  be  presumed  that  any  nation  will  patiently 
permit  another  to  make  laws  within  its  territories  without  its 
consent."  D'Yrujo  weakened  his  objection  by  giving  special 
point  to  the  territory  east  of  the  Mobile  River,  for  there  was 
a  very  small  patch  of  territory  on  that  side,  stretching  to  the 
Perdido,  which  the  United  States  claimed  under  the  treaty. 
Spanish  objections  grew  weaker  also  because  of  the  precarious 
condition  in  which  Spain  was  placed  by  Napoleon's  strategy. 

In  1804  Monroe  proceeded  on  a  special  mission  to  Madrid 
for  the  purpose  of  obtaining  East  Florida,  a  settlement  of 
spoliation  claims,  and  a  determination  of  boundaries.  He  pro- 
posed to  Cevallos  that  His  Catholic  Majesty  should  cede  the 
territory  east  of  the  Mississippi;  arbitrate  the  claims  of  American 
citizens  and  Spanish  subjects  in  accordance  with  a  convention 
agreed  to  in  1802,  but  as  yet  unratified  by  Spain;  and  the  United 
States  would  limit  its  western  boundary  by  the  Colorado. 
Under  no  circumstances  should  he  yield  any  territory  east  of  the 

1  2  Statutes  at  Large,   254. 

»H.  B.  Fuller,  The  Purchase  of  Florida:  124. 


THE  FLORIDA  PURCHASE,  1819  155 

Rio  Grande.1  By  the  end  of  May,  1805,  Spain  had  totally 
rejected  this  proposition,2  and  thereby  terminated  Monroe's 
special  mission.  In  April  Monroe  had  joined  with  Pinckney  in 
asking  for  the  recall  from  Washington  of  d'Yrujo  for  engaging 
in  undue  newspaper  propaganda  in  behalf  of  Spain.  D'Yrujo 
was  accordingly  recalled. 

The  United  States  continued  eager  for  Florida.  General 
Armstrong  in  Paris  was  directed  to  sound  Talleyrand  on  the 
possibility  of  obtaining  French  aid.  Talleyrand  offered  in  his 
equivocal  manner  to  accomplish  the  result  for  $7,000,000,  if  the 
United  States  would  cancel  the  claim  for  spoliations  committed 
by  the  French  in  Spanish  ports.  Jefferson  was  ready  to  pay 
$5,000,000;  but  Congress  opposed  this  amount  and  authorized 
only  $2,ooo,ooo.3  By  1806,  May  2,  Napoleon  refused  to  sell.4 

Two  years  later  Napoleon  acknowledged  that  England  had 
placed  the  continent  in  such  a  condition  that  he  could  not  doubt 
that  the  United  States  would  declare  war  on  her.  And  whenever 
the  United  States  did  so  he  would  approve  the  sending  of  Ameri- 
can troops  into  Florida.5  Madison  replied  that  should  a  pre- 
cautionary occupation  become  necessary  against  the  hostile 
designs  of  Great  Britain  "it  will  be  recollected  with  satisfaction 
that  the  measure  has  received  his  Majesty's  approbation. "  6 
When  these  words  were  conveyed  to  Napoleon  by  his  minister, 
the  military  situation  had  changed  and  with  it  Napoleon  had 
changed  his  mind.  Said  he:  "Answer  the  American  minister 
that  you  do  not  know  what  he  means  about  the  occupation  of  the 
Floridas;  and  that  the  Americans,  being  at  peace  with  the  Span- 
iards, cannot  occupy  the  Floridas  without  the  permission  or  the 
request  of  the  King  of  Spain. "  7 

In  1810  a  revolution  occurred  in  West  Florida.  Americans 
were  the  leaders,  but  they  acted  with  the  consent  of  the  Spanish 
governor.  Having  exhausted  the  use  of  the  governor  as  a  tool, 

1  American  State  Papers,  Foreign  Relations,  II.:  627. 

2  Ibid.,  II.:  666. 

3  Adams.  History  of  the  United  States,  III. :  Chapters  5  and  6 
4 Ibid.,  III.:  376. 

8  Ibid.,  IV.:  293. 
6  Ibid.,  IV.:  307. 
*  Ibid.,  IV.:  311. 


156  LEADING  AMERICAN  TREATIES 

they  disposed  of  him,  assembled  in  convention,  and  declared 
"  West  Florida  to  be  a  free  and  independent  State. "  Thereupon, 
they  urged  annexation  to  the  United  States.  President  Madison 
boldly  issued  a  proclamation  annexing  West  Florida  to  Louisiana 
and  ordering  Governor  Claiborne  to  take  possession  to  the 
Perdido  and  govern  it  as  a  part  of  the  territory  of  Orleans.1 
Madison  reasserted  that  the  territory  had  been  acquired  under 
the  Louisiana  Purchase.  Great  Britain  had  no  minister  in 
Washington,  but  she  instructed  her  charge*  d'affaires  to 
protest.  Spain  had  scarcely  a  mouthpiece  either  at  home  or  in 
Washington  to  voice  a  protest. 

When  Congress  met  in  December,  Florida  received  immediate 
attention.  Senator  Giles  reported  a  bill  extending  the  territory 
of  Orleans  to  include  West  Florida,  but  Henry  Clay  pointed  out 
that  this  had  already  been  done  by  the  President's  proclamation. 
Macon  in  the  House  wanted  to  admit  Orleans  and  West  Florida 
together  as  one  State.  Before  his  measure  got  through  both 
houses,  it  provided  for  the  admission  of  Louisiana  with  the 
Iberville  as  the  eastern  boundary;  and  West  Florida  remained 
as  Orleans  Territory  until  April  14,  1812,  when  Congress  divided 
the  territory  at  the  Pearl  River.  The  western  half  was  then 
added  to  the  State  of  Louisiana  and  the  eastern  half  became  on 
May  14,  1813,  a  part  of  the  territory  of  Mississippi. 

Rarely  has  the  advice  of  a  lawyer,  like  that  of  Livingston  at 
Paris  in  1803,  been  acted  upon  more  assiduously  by  a  client, 
than  did  the  United  States  toward  West  Florida.  In  1819, 
however,  the  treaty  with  Spain  tended  to  discredit  the  advice  of 
Livingston,  the  laws  of  Congress  relating  to  West  Florida,  and 
the  acts  of  the  President  relating  thereto  by  recognizing  that 
Spain  then  ceded  West  Florida  to  the  United  States.2  It  is 
worthy  of  note  also  that  the  recent  maps  published  by  the 
authority  of  the  United  States  do  not  include  West  Florida  as 
being  in  the  Louisiana  Purchase. 

Madison  expected  Congress  during  the  session  of  1812-1813 
to  approve  the  seizure  of  East  Florida  as  well,  and  he  took 

'Richardson,  Messages,  etc.,  I.:  480. 

•See  Article  II  of  the  treaty  in  MalJoy,  Treaties,  II.:  1652. 


THE  FLORIDA  PURCHASE,  1819  157 

measures  accordingly.  Indeed,  the  inhabitants  or  patriots  of 
East  Florida  virtually  seized  the  region  for  themselves.  Com- 
mander Campbell  with  nine  American  gunboats  and  General 
Matthews  with  a  body  of  American  troops  assisted  them.  The 
Spanish  governor,  Lopez,  surrendered.  Amelia  Island  was 
occupied.  St.  Augustine  was  about  to  be  taken.  And  General 
Andrew  Jackson  was  on  the  way  with  2,000  Tennesseans. 

But  Madison  had  overreached  the  desire  of  the  Senate  for 
more  territory.  That  body  refused  twenty-one  to  eleven  to 
approve  the  invasion  of  Florida.  Generals  Matthews  and  Jack- 
son had  to  be  recalled.  Then,  the  old  Spanish  leaders  and  the 
British  emissaries  roused  the  Indians  to  attack  the  patriots  and 
the  remaining  Americans,  and  for  several  years  spasmodic  war- 
fare continued. 

Spain  voiced  her  protest  against  the  American  invasion 
through  the  British  minister,  Foster.  Monroe  replied  that  Spain 
owed  America  more  for  spoliations  than  the  whole  of  East  Flor- 
ida was  worth.  And  he  authorized  Joel  Barlow  to  give  out  the 
same  information  in  Paris. 1  Spain  could  not  main  tarn  order  in 
the  province;  hence,  it  had  become  the  breeding  ground  for  smug- 
glers, marauders,  and  buccaneers.  However,  on  March  8,  1813, 
the  Czar's  offer  of  mediation  arrived.  This  was  accepted.  And 
Madison  and  Monroe  decided  that  it  would  be  unwise  diplo- 
matically to  precede  further  with  intervention  in  Florida. 

Not  until  December,  1815,  did  the  United  States  recognize 
the  government  of  Ferdinand  VII.  in  Spain,  when  the  President 
received  Don  Luis  de  Onis  as  minister.  A  wide  variety  of  ques- 
tions came  up  for  settlement.  Don  Luis  demanded  the  return 
of  West  Florida.  He  pointed  out  that  filibustering  expeditions 
into  East  Florida  and  Mexico  had  their  origin  in  Georgia,  and 
sometimes  hi  New  Orleans  and  Norfolk.  He  assumed  that 
Spain  could  still  enforce  her  old  colonial  policy  hi  South  and 
Central  America  if  the  United  States  would  observe  strict 
neutrality.  He  asked,  therefore,  that  vessels  sailing  under  the 
insurgent  flags  of  Cartagena,  of  Mexico,  and  of  Buenos  Ayres 
be  excluded  from  American  ports,  that  American  vessels  be  pre- 
1  American  State  Papers,  Foreign  Relations,  III.:  515. 


158  LEADING  AMERICAN  TREATIES 

vented  from  sailing  to  Spanish  America,  and  that  the  Mexican 
insurgents  under  the  leadership  of  Toledo  and  Herrera  be  barred 
from  recruiting  soldiers  on  American  soil.1 

Secretary  Monroe  replied  with  a  review  of  the  spoliations 
committed  by  Spain  and  of  the  treaty  agreed  to  in  1802  for 
arbitrating  the  respective  claims,  but  which  Spain  had  not  yet 
ratified.  Spain  had  herself  referred  the  United  States  to  France 
when  Pinckney  had  been  authorized  to  buy  the  Floridas.  The 
American  ministers  in  Madrid  had  repeatedly  made  overtures 
for  the  settlement  of  the  boundary  of  Louisiana  and  for  the 
establishment  of  a  neutral  belt  between  the  two  parties;  but 
Spain  had  rejected  all  of  them  and  made  none  in  return.  The 
action  of  the  Spanish  government  had  invited  "the  most 
decisive  measures  on  the  part  of  the  United  States. "  He  spoke 
of  "  the  breaches  of  the  neutrality  of  Spain,  which  her  Govern- 
ment permitted,  if  it  did  not  authorize,  by  British  troops  and 
British  agents  in  Florida,  and,  through  that  province,  with 
the  Creeks  and  other  Indian  tribes,  in  the  late  war  with  Great 
Britain,  to  the  great  injury  of  the  United  States.  The  United 
States  held  Louisiana  as  it  had  been  held  by  France  prior  to 
1763,  extending  from  the  Perdido  to  the  Rio  Grande;"  and  the 
United  States  considered  her  "right  established  by  well-known 
facts  and  the  fair  interpretation  of  treaties. "  Monroe  asked  for 
more  definite  information  about  the  collection  of  troops  on  Ameri- 
can soil  by  Toledo  and  Herrera,  and  if  the  statement  were  true 
the  offenders  would  be  prosecuted.  With  respect  to  the  revolu- 
tionists in  Spanish  America,  Monroe  stated:  "All  that  your 
Government  had  a  right  to  claim  of  the  United  States  was,  that 
they  should  not  interfere  in  the  contest,  or  promote,  by  any 
active  service,  the  success  of  the  revolution,  admitting  that 
they  continued  to  overlook  the  injuries  received  from  Spain 
and  remained  at  peace.  This  right  was  common  to  the  colonists. 
With  equal  justice  might  they  claim  that  we  would  interfere  to 
their  disadvantage;  that  our  ports  should  remain  open  to  both 
parties,  as  they  were  before  the  commencement  of  the  struggle; 
that  our  laws  regulating  commerce  with  foreign  nations  should 
'American  State  Papers,  Foreign  Relations,  IV.:  422. 


THE  FLORIDA  PURCHASE,  1819  159 

not  be  changed  to  their  injury.  On  these  principles  the  United 
States  have  acted. Ml 

The  President  and  Congress  did  make  an  effort  to  strengthen 
the  neutrality  law  of  1794.  The  act  of  March  3,  1817,  provided 
that  persons  engaged  in  fitting  out  vessels  in  American  ports  for 
the  purpose  of  cruising  against  powers  with  which  the  United 
States  was  at  peace  should,  upon  conviction,  be  fined  as  high  as 
$10,000,  imprisoned  not  more  than  ten  years,  and  the  vessel 
itself  might  be  condemned.  During  the  next  year  the  neutrality 
laws  were  revised  and  embodied  in  the  comprehensive  statute  of 
April  20,  1818,  which  is  substantially  the  present  law  on  the 
subject.2  But  the  law  written  and  the  law  observed  were  two 
different  propositions.  John  Quincy  Adams  in  his  "  Memoirs  " 
paid  particular  respect  to  conditions  in  Baltimore.  "  They  are  all 
fanatics  of  the  South  American  cause.  Skinner,  the  postmaster, 
has  been  indicted  for  being  concerned  in  the  piratical  privateers. 
Glenn,  the  district  attorney,  besides  being  a  weak  incompetent 
man,  has  a  son  said  to  be  concerned  in  the  privateers.  3  Adams 
continued:  "The  district  judge,  Houston,  and  the  circuit  judge, 
Duval,  are  both  feeble,  inefficient  men  over  whom  William 
Pinkney,  employed  by  all  the  pirates  as  their  counsel,  domi- 
neers like  a  slave  driver  over  his  negroes. "  4 

As  usual,  Spain  put  forth  feelers  for  the  best  possible  place 
to  conduct  the  negotiations.  At  first  she  decided  on  Washington 
in  order  to  test  Secretary  Monroe;  then  she  shifted  to  Madrid  to 
try  the  American  minister,  George  W.  Erving.  Her  next  move 
was  to  make  an  effort  to  find  upon  what  conditions  Great  Britain 
could  be  induced  to  offer  mediation.  Spain  sent  another  full 
power  to  Don  Luis  de  Onis  in  Washington.  This  was  recalled 
and  negotiations  began  in  Madrid.  Finally  she  decided  on 
Washington.  The  result  was  that  the  best  trained  man  in  the 
United  States  for  the  purpose  became  the  American  ne- 
gotiator, John  Quincy  Adams,  President  Monroe's  Secretary 
of  State. 

American  State  Papers,  Foreign  Relations,  IV.:  425. 

2  See  C.  G.  Fenwick,  The  Neutrality  Laws  of  the  United  States. 

SJ.  Q.  Adams,  Memoirs,  IV.:  318. 

4  Ibid.,  Memoirs,  IV.:  318. 


160  READING  AMERICAN  TREATIES 

On  December  10,1817,  Don  Luis  notified  Adams  that  he  had 
received  full  power  and  instructions  to  begin  and  conclude  an 
agreement.  He  reviewed  and  argued  at  length  the  claims  of 
Spain  in  four  letters  of  December  29,  1817,  January  5,  8,  and 
8,  iSiS.1  Adams  replied  on  January  16:  "I  am  instructed  by 
the  President  to  propose  to  you  an  adjustment  of  all  the  differ- 
ences between  the  two  countries,  by  an  arrangement  on  the 
following  terms: 

1.  Spain  to  cede  all  her  territory  eastward  of  the  Mississippi. 

2.  The  Colorado,  from  its  mouth  to  its  source,  and  from 
thence  to  the  northern  limits  of  Louisiana,  to  be  the  western 
boundary;  or,  to  leave  that  boundary  unsettled  for  future 
arrangement. 

3.  The  claim  of  indemnities  for  spoliations,  whether  Spanish, 
or  French  within  Spanish  jurisdiction,  and  for  the  suppression 
of  deposit  at  New  Orleans,  to  be  arbitrated  and  settled  by 
commissioners,  in  the  manner  agreed  upon  in  the  unratified 
convention  of  1802. 

4.  The  lands  in  East  Florida,  and  in  West  Florida,  to  the 
Perdido,  to  be  made  answerable  for  the  amount  of  the  indemni- 
ties which  may  be  awarded  by  the  commissioners  under  this 
arbitration;  with  an  option  to  the  United  States  to  take  the  lands 
and  pay  the  debts,   or  to  sell   the  amount  received   equally 
according  to  the  amount  of  their  respective  liquidated  claims, 
among  the  claimants.   No  grants  of  land  subsequent  to  the  nth 
of  August,  1802,  to  be  valid. 

5.  Spain  to  be  exonerated  from  the  payment  of  the  debts, 
or  any  part  of  them. " 

Adams  added  that  the  events  on  Amelia  Island  and  those 
which  were  threatening  along  the  Florida  border  constituted 
sufficient  motive  for  the  elimination  of  all  delay. 

Don  Luis  de  Onis  replied  on  January  24,  1818.  He  assumed 
that  it  was  the  river  Colorado  of  Natchitoches  and  not  the  one 
of  the  same  name  "still  farther  within  the  limits  of  the  Spanish 
provinces"  that  Adams  had  hi  mind.  He  pointed  out  that 

1  American  State  Papers,  Foreign  Relations,  IV.:  452,  455,  460,  463. 
'Ibid.,  IV.:  464. 


THE  FLORIDA  PURCHASE,  1819  161 

Spaniards  held  claims  for  indemnities  from  the  United  States; 
but  these  Adams  had  wholly  omitted;  while  both  the  Floridas 
were  to  be  ceded  by  Spain  to  satisfy  American  claims.  This  he 
held  to  be  offensive  to  the  dignity  and  honor  of  His  Catholic 
Majesty  as  well  as  unjust.  Spain  could  not  possibly  be  held 
responsible  for  the  spoliations  committed  by  France  within 
Spanish  jurisdiction;  moreover,  France  had  assumed  that 
responsibility.  Nor  would  he  admit  the  annullment  of  grants 
of  land  in  Florida  since  August,  1802. 

De  Onis  proposed  that  Spain  should  cede  the  Floridas  in 
return  for  territory  on  the  west  side  of  but  bordering  on  the 
Mississippi;  that  both  Spanish  and  American  claims  for  indem- 
nity be  left  to  the  commission  mentioned  in  the  unratified  agree- 
ment of  1802;  that  Spain  and  the  United  States  join  in  their 
endeavor  to  obtain  from  France  indemnity  for  spoliations  com- 
mitted by  that  state  within  Spanish  jurisdiction;  and  that  the 
United  States  should  take  effective  measures  to  prevent 
expeditions  being  fitted  out  in  her  ports  or  territory  against 
the  commerce  and  possessions  of  Spain.1 

The  events  along  the  Florida  border  were  rapidly  reaching  a 
crisis  and  thus  interrupted  the  negotiations.  General  Jackson 
had  been  directed  in  January,  1818,  to  take  command  of  the 
forces  on  the  border  and  conclude  the  war  against  the  Seminoles, 
half  breeds,  runaways,  slaves,  and  a  motley  crew  of  brigands. 
He  crossed  into  East  Florida,  marched  to  Fowlton,  where  he 
found  a  thousand  head  of  cattle  marked  with  the  brands  of 
Georgians.  He  set  fire  to  the  town,  and  proceeded  to  St. 
Marks,  which  he  reached  on  April  6.  He  informed  the  Spanish 
governor  that  in  order  to  prevent  further  breaches  of  neutrality, 
United  States  troops  would  occupy  the  fort  until  the  end  of  hos- 
tilities. It  was  at  St.  Marks  that  he  captured  the  English  Indian 
trader  Arbuthnot.  Jackson  marched  to  Suwanee  from  which  the 
Indians  had  fled,  due  largely  to  information  furnished  by  a  letter 
from  Arbuthnot.  While  there,  he  captured  another  Englishman, 
Robert  C.  Ambrister.  Jackson  returned  to  St.  Marks.  The 
two  Englishmen  were  summoned  before  a  court-martial,  charged 
1  American  State  Papers,  Foreign  Relations,  IV.:  464. 


162  LEADING  AMERICAN  TREATIES 

with  aiding  and  comforting  the  enemy  and  waging  war  against 
the  United  States,  and  convicted.  Ambrister  was  shot  and 
Arbuthnot  hanged. 

Jackson  marched  back  to  Fort  Gadsden.  Toward  the  end 
of  May  news  reached  him  that  over  five  hundred  Indians  had 
gathered  at  Pensacola,  were  fed  by  the  Spanish  governor;  and 
from  there  they  conducted  raids  upon  American  settlers.  Jack- 
son hurried  off  for  Pensacola.  The  Spanish  governor  sent  him  a 
message  to  turn  back  or  he  would  be  driven  out.  Such  threats 
never  failed  to  enrage  Jackson.  He  took  Pensacola  without 
opposition,  May  24,  1818;  the  governor  had  fled  to  Barrancas. 
And  there  Jackson  captured  fort,  governor,  garrison,  and  all, 
and  sent  them  off  to  Havana.  He  left  a  small  body  of 
troops  to  hold  Pensacola  and  Barrancas  and  returned  the 
hero  of  the  Florida  border  and  once  more  the  hero  of  the 
nation. 

Don  Luis  de  Onis  promptly  demanded  reparation.  "The 
Governor  of  Pensacola,"  said  he,  "had  conducted  himself  with 
the  most  scrupulous  circumspection,  to  avoid  giving  the  slightest 
ground  of  complaint  to  General  Jackson,  his  officers,  and  troops. 
Neither  he  nor  the  Governor  of  East  Florida  was  notified  of  the 
war  against  the  Seminole  Indians,  nor  were  they  informed  of  the 
just  causes  of  that  war;  nor  was  any  call  made  upon  them  to  seek 
and  punish  those  Indians  in  case  of  their  having  committed 
aggressions  upon  the  lands  or  citizens  of  this  republic.".  .  ."I 
am  persuaded  that  the  Government  of  the  United  States  cannot 
have  authorized  this  hostile,  bloody,  and  ferocious  invasion 
of  the  dominions  of  Spain, ...  In  the  President's  message  to 
Congress  of  the  25th  of  March  last,  I  observe  that  orders  have 
been  given  to  pursue  and  chastise  the  Seminole  Indians;  and  that 
if,  in  the  course  of  the  war,  it  should  be  necessary  to  enter  the 
Spanish  territory,  the  authorities  of  Spain  are  to  be  respected 
and  the  territory  evacuated  the  moment  the  war  is  at  an  end. " 
De  Onis  concluded  by  demanding  a  restitution  of  the  places 
taken  and  occupied  by  General  Jackson,  the  delivery  of  artillery, 
warlike  stores,  and  public  and  private  property,  indemnity  for 
the  crown  and  subjects  of  Spain,  "together  with  the  lawful 


THE  FLORIDA  PURCHASE,  1819  163 

punishment  of  the  general  and  the  officers  of  this  republic  by 
whom  they  were  committed.  'n 

Adams  replied  that  the  character  of  the  Indian  hostilities 
could  not  be  unknown  to  Spain,  that  in  the  fifth  article  of  the 
Treaty  of  1795  both  parties  agreed  "to  restrain  by  force  all 
hostilities  on  the  part  of  Indian  nations  living  within  their 
boundaries,"  that  General  Jackson  had  at  one  time  called  on  the 
Governor  of  Pensacola  to  comply  with  the  provisions  in  this 
treaty,  that  the  answer  acknowledged  the  obligation  but  pleaded 
incompetency  of  force,  and  that  depredations  on  and  massacres 
of  Americans  had  continued.  Said  Adams:  "By  the  ordinary 
laws  and  usages  of  nations,  the  right  of  pursuing  an  enemy,  who 
seeks  refuge  from  actual  conflict  within  neutral  territory,  is  in- 
contestable. "  He  concluded,  "  I  am  instructed  by  the  President 
to  inform  you  that  Pensacola  will  be  restored  to  the  possession 
of  any  person  duly  authorized  on  the  part  of  Spain  to  receive  it; 
that  the  fort  of  St.  Mark,  being  in  the  heart  of  the  Indian 
country,  and  remote  from  any  Spanish  settlement,  can  be  surren- 
dered only  to  a  force  sufficiently  strong  to  hold  it  against  the 
attack  of  the  hostile  Indians,  .  .  .  "  2 

Don  Luis  de  Onis  forwarded  Adams'  reply  by  special  mes- 
senger to  Madrid.  The  Minister  of  Foreign  Affairs,  Don  Jose 
Pizarro,  wrote  a  note  ordering  a  suspension  of  diplomatic  ne- 
gotiations and  including  a  threat  of  war  unless  suitable  ter- 
mination were  put  to  "an  incident  which,  from  its  transcendent 
moment,  is  capable  of  producing  an  essential  and  thorough 
change  in  the  political  relations  of  the  two  countries. "  3 

This  despatch  brought  a  masterly  reply  from  Adams,  Novem- 
ber 28, 1818.  He  reviewed  the  incidents  that  led  to  the  war  with 
the  Seminoles.  He  pointed  out  that  Robert  C.  Ambrister  had 
been  a  lieutenant  in  a  British  force  of  colonial  marines,  com- 
manded by  Colonel  Nicholls,  which  had  landed  in  Florida. 
Spain  had  formally  declared  herself  neutral.  The  hostility  of 
these  British  forces  had  not  ceased  with  the  Treaty  of  Ghent; 

1  American  State  Papers,  Foreign  Relations,  IV.:  496. 

2  Ibid.,  IV.:  497 
'Ibid.,  IV.:  523. 


1 64  LEADING  AMERICAN  TREATIES 

they  continued  to  sally  forth  with  their  black,  white,  and  red 
combatants  against  the  defenseless  borders  of  the  United  States. 
In  due  time  Lord  Bathurst  and  Lord  Castlereagh  had  disavowed 
the  conduct  of  Colonel  Nicholls.  But  in  1817  Arbuthnot 
had  succeeded  Nicholls  as  the  mentor  for  the  Indians  and 
Ambrister  had  continued  his  activities  among  the  red  men.  Jack- 
son had  taken  action/ 'not  in  a  spirit  of  hostility  to  Spain,  but 
as  a  necessary  measure  of  self  defence;  giving  notice  that  they 
(the  forts)  should  be  restored  whenever  Spain  should  place 
commanders  and  a  force  there  able  and  willing  to  fulfil  the 
engagements  of  Spain  towards  the  United  States. "  He  demanded 
that  an  enquiry  be  instituted  by  Spain  into  the  conduct 
of  her  governors  in  Florida.  He  returned  to  the  subject  of 
Colonel  Nicholls  and  asked,  "Has  his  Majesty  suspended  form- 
ally all  negotiation  with  the  sovereign  of  Colonel  Nicholls  for  this 
shameful  invasion  of  his  territory,  without  color  or  provocation, 
without  pretence  of  necessity,  without  shadow  or  even  the 
avowal  of  a  pretext?  Has  his  Majesty  given  solemn  warning  to 
the  British  Government  that  these  were  incidents  of  transcend- 
ent moment,  capable  of  producing  an  essential  and  thorough 
change  in  the  political  relations  of  the  two  countries?"  Later 
in  the  same  paragraph:  "But  against  the  shameful  invasion  of 
the  territory;  against  the  violent  seizure  of  forts  and  places; 
against  the  blowing  up  of  the  Barrancas  and  the  erection  and 
maintenance,  under  British  banners,  of  the  negro  fort  on  Spanish 
soil;  against  the  negotiation  by  a  British  officer,  in  the  midst 
of  peace,  of  pretended  treaties,  offensive  and  defensive,  and  of 
navigation  and  commerce,  upon  Spanish  territory,  between 
Great  Britain  and  Spanish  Indians,  whom  Spain  was  bound  to 
control  and  restrain — if  a  whisper  of  expostulation  was  ever 
wafted  from  Madrid  to  London,  it  was  not  loud  enough  to  be 
heard  across  the  Atlantic  nor  energetic  enough  to  transpire 
beyond  the  walls  of  the  palaces  from  which  it  issued  and  to  which 
it  was  borne. "  ' 

Adams  wrote  this  note  for  Minister  Erving  to  transmit  to 
Don  Jose  Pizarro.    In  addition  Adams  had  in  mind  the  whole 
•American  State  Papers,  Foreign  Relations,  IV.:  539. 


THE  FLORIDA  PURCHASE,  1819  165 

European  situation;  and  a  copy  of  the  note  was  sent  to 
every  American  diplomat  abroad.  The  members  of  the  Holy 
Alliance  were  particularly  interested  in  the  quieting  of  revolu- 
tionary efforts  and  in  the  restoration  to  Spain  of  her  rebellious 
colonies.  Gallatin  had  written  from  Paris  that  the  affair  at 
St.  Marks  had  made  upon  France  and  other  parts  of  Europe 
sensations  peculiarly  unfavorable  to  the -United  States.1  Rush 
in  London  had  gone  to  a  dinner  at  the  French  embassy  on  July 
30,  1818,  where  foreign  diplomats  had  eagerly  inquired  whether 
the  seizure  of  St.  Marks  and  Pensacola  meant  war  with  Spain.2 
In  the  British  market  the  price  of  stocks  fell  and  newspaper 
opinion  favored  retribution  for  the  execution  of  Arbuthnot  and 
Ambrister.3  It  needs  to  be  said  that  Adams'  grip  on  the  situa- 
tion did  much  to  place  the  United  States  in  the  right  light  before 
the  world. 

Before  this  note  was  written  Pizarro  had  decided  to  reopen 
negotiations  for  a  definitive  treaty.  Jackson's  episode  had 
made  the  need  for  ceding  the  Floridas  to  the  United  States  so 
apparent  that  this  point  required  no  further  argument.  De  Onis 
showed  a  disposition  to  be  content  with  a  boundary  slightly 
farther  west  than  the  Mississippi.4  Thereupon,  Adams  made  an 
immense  concession  on  the  western  boundary:  beginning  at 
the  mouth  of  the  river  Sabine,  following  that  river  to  latitude  32 
degrees,  thence  north  to  the  Red  River,  up  that  stream  to  its 
source,  touching  the  chain  of  the  Snow  Mountains,  thence  to  the 
summit  of  those  mountains  and  following  the  chain  to  the  forty- 
first  parallel,  and  thence  along  that  parallel  to  the  "South  Sea," 
a  quaint  term  for  the  Pacific  first  used  by  Balboa.  Adams  had 
proposed  to  give  up  the  claim  to  Texas.  No  doubt  he  acted  on 
the  advice  of  President  Monroe  and  the  cabinet,  for  he  states  in 
his  Memoirs  "in  all  negotiations  conducted  by  me  while  secre- 
tary of  state,  whether  with  Spain,  France,  or  England,  I  insisted 
invariably  upon  all  the  claims  of  the  United  States  to  their 
utmost  extent;  and  whenever  anything  was  conceded,  it  was  by 

1GaUatin,  Writings,  II.:  69,  74. 

2  R.  Rush,  Residence  at  the  Court  of  London,  291  (London,  1833). 

3  Ibid.,  412 

4  American  State  Papers,  Foreign  Relations,  IV.:  526. 


1 66  LEADING  AMERICAN  TREATIES 

direction  of  the  President  himself,  and  always  after  consultation 
in  cabinet  meetings,  and  that  it  was  especially  so  in  the  negotia- 
tion of  the  Florida  treaty. "  l 

Adams  agreed  that  both  parties  should  renounce  claims  for 
damages  until  the  date  of  the  treaty.  He  still  insisted  that 
grants  of  land  in  Florida  made  by  Spain  since  1802  should  be 
void.  For  this  contention  he  would  have  had  new  facts  if  he 
had  read  the  correspondence  from  Madrid.  Erving  had  dis- 
covered in  February,  1818,  that  the  King  had  made  three  huge 
land  grants  in  Florida,  one  to  the  Duke  of  Alagon,  captain  of  the 
bodyguards,  another  to  Count  of  Punon  Rostro,  one  of  his 
Majesty's  chamberlains,  and  the  third  to  Don  Pedro  de  Vargas, 
treasurer  of  the  household.  It  was  believed  that  these  grants 
encompassed  all  of  the  remaining  crown  lands.2  On  the 
remaining  points  contained  hi  the  treaty  there  was  no  serious 
difference. 

Don  Luis  de  Onis  replied  that  he  could  not  agree  to  have  the 
boundary  follow  the  Red  River  or  the  forty-first  parallel.  Adams 
thereupon  reserved  American  rights  to  the  Rio  Grande.3  Don 
Luis  sent  to  Madrid  for  further  instructions  on  the  western 
boundary.  On  January  6,  1819,  he  proposed  that  the  northern 
boundary  should  extend  from  the  source  of  the  Missouri,  west- 
ward to  the  Columbia  River  and  thence  to  the  sea.  Adams 
rejected  it.  Don  Luis  yielded  by  running  the  boundary  from 
the  Red  River  to  the  Arkansas  at  the  one-hundredth  meridian 
and  by  accepting  the  forty-first  parallel  to  the  San  Clemente 
River,  and  thence  to  the  Pacific;  and  he  included  a  project  of  a 
treaty.4  Adams  submitted  a  counter  project  which  approved 
the  shift  to  the  Arkansas  but  still  insisted  on  the  forty-first 
parallel.  It  recognized  Spanish  land  grants  in  Florida  up  to 
January  24,  i8i8.5 

On  February  16, 1819,  the  French  minister  in  Washington,  M. 
de  Neuville,  brought  to  Adams  copies  of  the  treaties  in  parallel 

»J.  Q.  Adams,  Memoirs,  VIII.:  186. 

1  American  State  Papers,  Foreign  Relations,  IV. :  509. 

»Ibid.  IV.:  545. 

•Ibid.,  IV.:  617. 

•Ibid.,  IV.:  619. 


THE  FLORIDA  PURCHASE,  1819  167 

columns,  annotated  with  the  differences  between  the  parties. 
He  conducted  conversations  with  Adams  and  then  with  Don 
Luis.  The  latter  yielded  to  the  forty-second  parallel.  Adams 
and  Don  Luis  thereupon  exchanged  full  powers,  and  on  Wash- 
ington's birthday,  1819,  signed  the  treaty.1  Two  days  later  the 
Senate  advised  ratification;  and  on  February  25,  1819,  the 
President  signed  the  document. 

Summary  of  the  treaty. 

Article  I.  There  was  to  be  a  firm  and  inviolable  peace  be- 
tween the  parties. 

Article  II.  East  and  West  Florida  were  ceded  to  the  United 
States. 

Article  III.  The  western  boundary  of  the  United  States 
should  begin  "in  the  sea"  at  the  mouth  of  the  Sabine,  up  that 
river  along  the  western  bank  to  the  thirty-second  parallel, 
thence  due  north  to  the  Red  River,  up  that  river  to  the  one- 
hundredth  meridian,  thence  due  north  to  the  Arkansas,  up  that 
river  along  its  southern  bank  to  its  source,  thence  due  north  to 
the  forty-second  parallel  and  then  along  that  parallel  to  the 
"  South  Sea. "  By  this  article  the  United  States  acquired  what- 
ever claim  Spain  had  to  the  Oregon  country. 

Article  IV.  A  survey  of  the  western  boundary  was  provided 
for. 

Article  V.  The  inhabitants  of  the  ceded  territories  should 
enjoy  "free  exercise  of  their  religion"  and  should  have  the  right 
to  emigrate. 

Article  VI.  The  inhabitants  of  the  territories  ceded  to  the 
United  States  should  be  incorporated  in  the  union  as  soon  as 
consistent  with  the  principles  of  the  constitution.  This  article 
contained  only  slight  verbal  changes  as  compared  with  the  much 
debated  Article  III  in  the  Louisiana  Treaty. 

Article  VII.  Possession  of  ceded  territories  should  be  given 
within  six  months  after  the  exchange  of  ratifications.  Due  to 
difficulties  described  later  the  United  States  did  not  receive 
possession  until  July  10, 1821. 

Article  VIII.  All  grants  of  land  in  the  ceded  territories  made 
1  American  State  Papers,  Foreign  Relations,  IV.:  621-625. 


i68  LEADING  AMERICAN  TREATIES 

by  Spain  before  January  24,  1818,  should  be  recognized  by  the 
United  States.  All  grants  made  after  that  date  "are  hereby 
declared  and  agreed  to  be  null  and  void. "  Adams  had  failed  to 
read  carefully  the  Erving  correspondence  concerning  the  three 
huge  land  grants  dated  February  6,  L8i8,  until  after  the  treaty 
was  signed.1  He  therefore  asked  that  Spain  should  expressly 
cancel  those  hi  her  ratification. 

Article  IX.  The  United  States  renounced  its  claims  men- 
tioned hi  the  convention  of  1802 ;  those  based  on  French  seizures, 
within  the  jurisdiction  of  Spain,  on  the  suspension  of  the  right  of 
deposit  at  New  Orleans  in  1802,  on  Spanish  seizures  either  at 
home  or  in  the  colonies;  and  all  other  claims  filed  by  American 
citizens  up  to  the  signature  of  the  treaty. 

Spain  renounced  her  claims  mentioned  in  the  convention  of 
1802;  those  based  on  sums  advanced  to  Captain  Pike;  on  the 
expedition  of  Miranda,  fitted  out  in  New  York;  on  unlawful 
seizures  by  the  United  States;  and  all  other  filed  claims  of  Span- 
ish subjects  up  to  the  signature  of  the  treaty. 

Article  X.   The  convention  of  1802  was  annulled. 

Article  XI.  The  United  States  assumed  the  claims  of  its  own 
citizens  against  Spain  to  the  extent  of  $5,000,000.  A  special 
commission  was  created  by  this  article  to  hear  these  claims. 
Spain  agreed  to  furnish  whatever  pertinent  documents  she 
possessed.  And  the  Spanish  minister  could  ask  for  the  records 
and  proceedings  of  the  commission.  Claims  to  the  extent  of 
$5»454>545-i3  were  later  allowed  by  this  commission;  and  these 
claims  were  paid  pro  rata.2 

Article  XII.  The  principle  that  "the  flag  shall  cover  the 
property,"  mentioned  in  the  Treaty  of  1795,  "the  two  high 
contracting  parties  agree  that  this  shall  be  so  understood  with 
respect  to  those  Powers  who  recognize  this  principle;  but  if 
either  of  the  two  contracting  parties  shall  be  at  war  with  a 
third  party,  and  the  other  neutral,  the  flag  of  the  neutral  shall 
cover  the  property  of  enemies  whose  Government  acknowledge 
this  principle,  and  not  of  others. " 

1 J.  Q.  Adams,  Memoirs,  IV.:  291. 

*  Moore,  International  Arbitrations,  V.:  4517. 


THE  FLORIDA  PURCHASE,  1819  169 

Article  XIII.  Deserters  from  merchant  vessels  should  be 
mutually  arrested  and  delivered  at  the  instance  of  consuls  of 
the  respective  parties. 

Article  XIV.  The  United  States  certified  that  it  had  not 
received  compensation  from  France  for  seizures  made  by  French 
privateers  and  condemnations  made  by  French  tribunals  on  the 
coasts  and  in  the  ports  of  Spam.  This  article  had  a  special 
point  inasmuch  as  the  French  minister,  M.  de  Neuville,  acted 
as  unofficial  mediator  toward  the  close  of  the  negotiations. 
France  agreed  to  pay  these  claims  hi  1831. 

Article  XV.  For  a  term  of  twelve  years  the  ports  of  Pensacola 
and  St.  Augustine  should  be  open  to  Spanish  vessels  laden  with 
goods  of  Spanish  production  "without  paying  other  or  higher 
duties  on  their  cargoes,  or  of  tonnage,  than  will  be  paid  by  the 
vessels  of  the  United  States. "  No  other  nation  was  to  enjoy 
this  same  privilege. 

Article  XVI.  Ratifications  should  be  exchanged  within  six 
months.1 

The  President  commissioned  John  Forsyth  as  minister  to 
Spain  in  March,  1819.  Secretary  Adams  instructed  him  to 
obtain  an  expressed  renunciation  of  the  grants  of  Florida  lands 
to  the  three  court  favorites  and  to  preserve  the  right  of  the 
United  States  to  be  first  named  in  one  of  the  certificates  of 
ratification  and  the  right  of  the  representative  of  the  United 
States  to  sign  first,  one  of  these  certificates.2 

By  a  curious  turn  in  political  fortune  Don  Casa  d'  Yrujo  had 
become  the  leading  minister  in  Madrid.  He  had  not  forgotten 
his  efforts  to  convince  Madison  that  Livingston's  interpretation 
of  the  first  article  in  the  Louisiana  Treaty  as  including  West 
Florida  was  a  figment  of  the  imagination  and  his  subsequent 
recall  from  Washington  at  the  request  of  Madison.  Forsyth's 
request  that  the  three  land  grants  be  expressly  cancelled 
appeared  to  him  to  be  mere  cavil  and  to  have  been  disposed  of  by 
Article  VIII  of  the  treaty.  This  appeared  to  M.  de  Neuville, 
also,  to  be  a  fair  interpretation.3  However,  Adams  did  not  have 

1Malloy,  Treaties,  II.:  1651. 

2  American  State  Papers,  Foreign  Relations,  IV.:  650,  652. 

3  Ibid.,  IV.:  653. 


170  LEADING  AMERICAN  TREATIES 

the  authenticated  dates  of  these  grants;  and  he  had  had  consid- 
erable experience  with  tricks  in  diplomacy. 

But  the  point  of  vital  importance  to  the  Spanish  government 
was  the  fear  that  as  soon  as  the  treaty  had  been  ratified  by  Spain, 
the  United  States  would  feel  free  to  recognize  the  independence  of 
the  South  American  republics;  a  fear  which  had  considerable 
reason  back  of  it.1  Mr.  Forsyth  waited  a  month  for  a  reply  to 
his  urgent  communication.  And  when  it  came,  June  19,  1819, 
the  reply  stated  "His  Majesty  has,  in  consequence,  commanded 
me  to  inform  you,  in  reply,  that,  on  reflecting  on  the  great 
importance  and  interest  of  the  treaty  in  question,  he  is  under  the 
indispensable  necessity  of  examining  it  with  the  greatest  caution 
and  deliberation  before  he  proceeds  to  ratify  it.2 

Forsyth  protested  zealously  on  the  delay  in  ratification.  Two 
months  later,  August  10,  1819,  he  was  informed  that  several 
explanations  must  be  made  with  the  United  States  and  that  a 
person  high  in  the  confidence  of  his  Majesty  would  be  despatched 
to  Washington.3  The  time  for  ratifying  the  treaty  expired  on 
August  22,  1819.  On  October  2,  Forsyth  announced  to  the  first 
minister  of  state  that  he  had  been  authorized  to  receive  the 
ratification  by  Spain  on  two  conditions;  ratification  to  take 
place  within  ten  days  and  disavowal  of  the  three  land  grants.4 
The  first  minister  continued  his  dilatory  tactics  and  returned 
Forsyth's  note  of  October  18,  with  the  explanation  that  its 
language  would  not  permit  the  note  to  be  laid  before  the 
King.5 

The  situation  grew  so  strained  that  the  first  minister  asked 
the  Russian  charg6  d'affaires,  Count  Bulgary,  to  call  on  Forsyth 
and  state  that  General  Vives  would  proceed  immediately  to 
Washington  with  competent  powers  to  reach  an  amicable  settle- 
ment with  the  Secretary  of  State.6  General  Vives  was  appointed. 
He  travelled  leisurely  by  coach  to  Bayonne,  thence  to  Paris 

'See  W.  F.  Johnson,  America's  Foreign  Relations,  I.:  320  ff.  and  F.  E. 
Chadwick,  United  States  and  Spain,  Chapter  VIII. 
•American  State  Papers,  Foreign  Relations,  IV.:  654. 
'Ibid.,  IV.:  656. 
4  Ibid.,  IV.:  662. 
•Ibid.,  IV.:  672. 
•Ibid.,  IV.:  675. 


THE  FLORIDA  PURCHASE,  1819  171 

where  he  saw  Gallatin,  from  Paris  to  London  where  he  saw  Rush, 
and  began  negotiations  in  Washington  on  April  14,  1820. 

In  the  meantime  Adams  had  communicated,  December  16, 
1819,  with  William  Lowndes,  chairman  of  the  Senate  committee 
on  foreign  relations.  "As  there  is  no  court  of  chancery  between 
nations"  wrote  Adams,  "their  differences  can  be  settled  only  by 
agreement  or  by  force.  The  resort  to  force  is  justifiable  only 
when  justice  cannot  be  obtained  by  negotiation;  and  the  resort 
to  force  is  limited  to  the  attainment  of  justice.  The  wrong 
received  marks  the  boundaries  of  the  right  to  be  obtained." 
He  wrote  further  that  the  United  States  "cannot  compel  the 
King  of  Spain  to  sign  the  act  of  ratification,  and,  therefore 
cannot  make  the  instrument  a  perfect  treaty;  but  they  can,  and 
are  justifiable  in  so  doing,  take  that  which  the  treaty,  if  perfect 
would  have  bound  Spain  to  deliver  up  to  them;  and  they  are 
further  entitled  to  indemnity  for  all  the  expenses  and  damages, 
which  they  may  sustain  by  consequence  of  the  refusal  of  Spain 
to  ratify."1 

Adams  did  not  have  back  of  this  recommendation  to  use  force 
the  unanimous  support  of  the  President  and  the  cabinet;  nor  is  it 
likely  that  he  wanted  more  than  a  show  of  eagerness  on  the  part 
of  Congress  to  use  force.  In  this  he  was  justified.  He  aroused 
public  opinion.  The  hero,  Jackson,  had  no  reservations.  He 
wrote  to  Senator  Eaton,  December  28, 1819, "  Under  the  bad  faith 
of  Spain,  as  I  believe,  the  only  good  explanation  that  can  be 
given  is  from  the  mouth  of  American  cannon. " 

This  concentration  of  American  desire  together  with  the 
successful  cultivation  of  European  opinion  by  the  State  Depart- 
ment brought  the  friendly  interposition  of  the  Russian,  French, 
and  British  ministers  in  Washington.  The  first  letter  of  General 
Vives  to  Adams  revealed  the  causes  for  Spanish  delay,  Vives 
dwelt  on  the  scandalous  system  of  piracy  that  had  been  carried 
on  from  the  ports  of  the  United  States  against  Spain  and  her 
possessions  and  on  the  spirit  of  hostility  displayed  everywhere 
as  being  sufficient  "imperiously  to  dictate  the  propriety  of  sus- 
pending the  ratification  of  the  treaty. "  He  proposed  that  the 
1  American  State  Papers,  Foreign  Relations,  IV.:  673. 


172  LEADING  AMERICAN  TREATIES 

United  States  prohibit  in  the  future  the  departure  of  piratical 
or  hostile  expeditions  against  the  Spanish  possessions  and  that 
the  United  States  should  "agree  to  offer  a  pledge  that  their 
integrity  shall  be  respected. "  l  This  meant  that  the  United 
States  should  bind  itself  not  to  recognize  the  independence  of  the 
South  American  countries. 

Adams  asked  Vives  for  a  copy  of  his  full  powers  and  for  a 
copy  of  the  act  of  ratification  before  he  would  reply.  Vives 
furnished  the  copy  of  full  powers  but  not  the  latter.  Adams 
expressed  his  surprize  and  noted  that  the  full  power  of  Don  Luis 
de  Onis  was  identical  with  that  of  Vives,  in  which  his  Catholic 
Majesty  had  promised  "on  the  faith  and  word  of  a  King,  to 
approve,  ratify,  and  fulfil  whatsoever  might  be  stipulated  and 
signed  by  him."  Adams  continued,  "By  the  universal  law  of 
nations,  nothing  can  release  a  sovereign  from  the  obligation  of  a 
promise  thus  made,  except  the  proof  that  his  minister,  so 
empowered,  has  been  faithless  to  his  trust,  by  transcending  his 
instructions."  No  such  proof  had  been  furnished  nor  had  it 
even  been  alleged  that  Don  Luis  de  Onis  had  violated  his  instruc- 
tions. The  proposals  made  in  Vives'  letter  Adams  refused  to 
consider  "in  the  present  state  of  relations  between  the  two 
countries,  as  points  for  discussion, "  until  after  the  Floridas  had 
been  delivered.2 

General  Vives  had  no  power  to  deliver  the  Floridas,  but  the 
French  and  Russian  ministers  arranged  a  conference  for  him  with 
Secretary  Adams;  and  Adam's  letter  to  Vives  of  May  3,  1820,* 
shows  that  at  the  conference  differences  had  been  completely 
removed.  The  imputations  of  hostility  to  Spain  and  of  violation 
of  neutrality  with  respect  to  the  Spanish  provinces  Adams  main- 
tained were  wholly  unfounded.  On  the  last  point  Adams 
stated:  "  As  a  necessary  consequence  of  the  neutrality  between 
Spain  and  the  South  American  provinces,  the  United  States 
can  contract  no  engagement  not  to  form  any  relations  with 
those  provinces."  In  reply  Vives  expressed  satisfaction  with 

'American  State  Papers,  Foreign  Relations,  IV.:  680. 
•Ibid.,  IV.:  682. 
'Ibid.,  IV.:  683. 


THE  FLORIDA  PURCHASE,  1819  173 

the  contents  of  Adams'  letter,  except  on  the  last  point, 
the  reply  to  which  he  would  have  to  refer  to  Madrid.  Vives 
informed  Adams  also  of  the  current  intelligence  that  the  consti- 
tution of  1812  had  been  sworn  to  by  the  King  and  that, 
therefore,  the  ratification  of  the  treaty  would  have  to  be 
approved  by  the  Cortes.1 

Adams  wrote  a  sharp  reply.  He  quoted  Vattel  and  Martens 
to  show  the  obligation  of  the  King  to  ratify.  And  he  informed 
Vives  that  the  correspondence  would  be  turned  over  to  Congress 
"  to  whom  it  will  belong  to  decide  how  far  the  United  States  can 
yet,  consistently  with  their  duties  to  themselves,  and  the  rights 
of  their  citizens,  authorize  the  further  delay  requested  in  your 
note  of  the  5th  instant."2  The  President  sent  the  papers  to 
Congress  the  next  day,  May  9,  1820.  Both  houses  adjourned  a 
week  later  without  taking  action. 

Forsyth  put  forth  his  best  efforts  during  the  summer  to  ob- 
tain the  approval  of  the  treaty  by  the  Cortes  and  the  ratification 
by  the  King.  The  Spanish  government  yielded  on  Vives'  third 
point.  And  on  October  5,  1820,  the  Cortes  advised  the  King  to 
ratify  the  treaty  with  an  expressed  renunciation  of  the  three 
land  grants.  Ferdinand  VII.  ratified  as  advised  on  October  24, 
1820.  With  the  certificate  of  ratification  of  the  treaty  an  order 
was  included  to  General  Vives  for  the  evacuation  and  delivery  of 
the  Floridas.3 

When  these  documents  reached  General  Vives  in  Washington, 
he  notified  Adams  to  that  effect;  and  he  had  sufficient  pertinacity 
to  plead  consideration  of  indemnity  to  certain  Spaniards  and 
compensation  for  the  benefit  of  the  grantees  of  Florida  lands 
whose  title  had  been  recognized  as  cancelled.  Adams  replied 
characteristically  that  the  former  was  covered  by  the  treaty  and 
on  the  later  "no  indemnity  can  be  due,  because  no  injury  was 
done. "  4 

The  President  resubmitted  the  treaty  to  the  Senate.  That 
body  advised  ratification  February  19,  1821.  The  President 

1  American  State  Papers,  Foreign  Relations,  IV.:  684,  688. 
"Ibid.,  IV.:  685. 
"Ibid.,  IV.:  696,  702. 
4  Ibid.,  IV.:  703. 


174  LEADING  AMERICAN  TREATIES 

signed  it,  the  ratifications  were  exchanged,  and  the  President 
proclaimed  the  treaty  on  February  22,  1822;  exactly  two  years 
after  the  treaty  had  been  signed  by  Adams  and  Don  Luis  de  Onis. 

BIBLIOGRAPHY 

ADAMS,  J.  Q. — Memoirs,  1 2  volumes.  Edited  by  Charles  Francis  Adams 
Philadelphia,  1874-1877. 

ADAMS,  J.  Q. — Writings,  7  volumes.  Edited  by  W.  C.  Ford.  New  York, 
1913-1917. 

American  State  Papers,  Foreign  Relations,  IV.    Washington,  1834. 

CHADWICK,  F.  E.—The  Relations  of  the  United  States  and  Spain,  Diplomacy. 
Chapter  VII.  New  York,  1909. 

Cox,  ISAAC  J. — The  West  Florida  Controversy.    1798-1813.   Baltimore,  1918. 

Executive  Journal  of  the  United  States  Senate,  1819.  Volume  III.  Wash- 
ington, 1828. 

FULLER,  H.  B.— The  Purchase  of  Florida.    Cleveland,  1906. 


CHAPTER  IX 
THE  WEBSTER-ASHBURTON  TREATY,  1842 

"It  will  be  for  Her  Majesty's  Government  to  show  upon  what  rules  of 
national  law  the  destruction  of  the  "Caroline"  is  to  be  defended.  It 
will  be  for  that  government  to  show  a  necessity  of  self-defence,  instant, 
overwhelming,  leaving  no  choice  of  means,  and  no  moment  for  delibera- 
tion."— DANIEL  WEBSTER. 

The  issues  of  paramount  importance  that  passed  through 
Webster's  hands  during  his  first  term  as  Secretary  of  State  were 
those  with  Great  Britain.  These  issues  had  led  more  than  once 
to  open  hostilities  locally  and  had  threatened  to  involve  the  two 
countries  in  war.  These  issues  may  be  divided  into  three  parts; 
those  connected  with  the  northeastern  boundaries,  including  the 
Aroostook  War;  those  connected  with  the  relations  between 
American  citizens  and  the  insurgents  during  the  Canadian 
rebellion  of  1837,  including  the  Caroline  affair,  the  case  of 
McLeod,  and  the  need  of  a  provision  for  extradition;  and  those 
connected  with  the  suppression  of  the  international  slave  trade, 
including  the  right  of  visit  and  search.  Webster  argued  and 
presented  diplomatically  the  rights  of  the  United  States  in  the 
case  of  the  "  Creole. "  And  in  a  dignified  and  summary  manner 
he  reached  an  understanding  with  Great  Britain,  once  and  for  all 
time,  in  regard  to  impressments.  All  of  these  issues  were  merged 
in  the  discussions  leading  to  the  Webster-Ashburton  Treaty. 

The  negotiators  were  peculiarly  well  fitted  for  reaching  an 
agreement.    Before  his  elevation  to  the  peerage  Lord  Ashburton 
bore  the  name  of  Alexander  Baring.    He  had  been,  since  1810, 
the  head  of  the  banking  house  of  Baring  Brothers,  which  held 
extensive  investments  in  various  parts  of  the  world  and  parti- 
cularly in  the  United  States.    While  a  resident  and  in  business 
in  America,  he  had  listened  to  the  debates  in  Congress  on  Jay's 
Treaty,1  and  he  had  married,  1798,  the  eldest  daughter  of  U.  S. 
*H.  Adams,  Life  of  Gallatin:  660. 
175 


I  ;6  LEADING  AMERICAN  TREATIES 

Senator  Bingham  of  Pennsylvania.  After  his  return  to  London 
he  continued  his  friendly  relations  with  many  American  families. 
He  held  a  seat  in  the  House  of  Commons  for  thirty  years  and 
served  as  Chancellor  of  the  Exchequer  in  the  cabinet  of  the  Duke 
of  Wellington.  When  the  aggressive  Lord  Palmerston  ceased  to 
be  Secretary  of  State  for  Foreign  Affairs  and  Lord  Aberdeen 
succeeded  him,  the  latter  looked  around  for  a  suitable  man  to 
head  a  special  mission  to  the  United  States;  the  choice  fell  on 
Lord  Ashburton.  Webster  described  him  as  a  good  man  to 
deal  with,  who  could  see  that  there  were  two  sides  to  a  question. 
"He  was  fully  acquainted  with  the  subject,  and  always,  on  all 
occasions,  as  far  as  his  allegiance  and  duty  permitted  felt  and 
manifested  good  will  towards  this  country."  l 

Daniel  Webster  had  long  been  the  political  leader  of  New 
England,  and  he  had  become  nationally  known  both  at  the  bar 
and  in  Congress  as  the  expounder  of  the  constitution.  Several 
times  he  had  been  mentioned  for  the  post  of  minister  to  London. 
The  summer  and  fall  of  1839  he  had  spent  in  the  United  Kingdom 
and  had  been  showered  with  hospitalities.  He  met  the  leading 
men,  among  them  Carlyle,  Dickens,  Hallam,  Canning,  and 
Lord  Ashburton.  Carlyle's  description  of  him  is  often  quoted. 
"Not  many  days  ago  I  saw  at  breakfast  the  notablest  of  your 
notabilities,  Daniel  Webster.  He  is  a  magnificent  specimen. 
You  might  say  to  all  the  world,  'This  is  our  Yankee  Englishman ; 
such  limbs  we  make  in  Yankee  land ! "  As  a  logic  fencer,  or  parlia- 
mentary Hercules,  one  would  be  inclined  to  back  him  at  first 
sight  against  all  the  extant  world.  The  tanned  complexion, 
that  amorphous  crag-like  face;  the  dull  black  eyes  under  the 
precipice  of  brows,  like  dull  anthracite  furnaces,  needing  only 
to  be  blown;  the  mastiff  mouth  accurately  closed;  I  have  not 
traced  so  much  of  silent  Berserkir  rage  that  I  remember  in  any 
man." 

President  Harrison  offered  Webster  the  choice  of  Secretary 

of  State  or  Secretary  of  the  Treasury.   Webster  chose  the  former. 

When  Harrison  died,  and  Tyler  was  shortly  afterward  read  out 

of  the  Whig  party,  the  members  of  the  cabinet  resigned  except 

'Webster,  Works,    II.:  122. 


THE  WEBSTER-ASHBURTON  TREATY,  1842  177 

Webster.  And  it  was  largely  a  high  sense  of  patriotism  and  a 
desire  to  settle  outstanding  difficulties  with  Great  Britain  that 
caused  him  to  remain. 

Lord  Ashburton  arrived  in  Washington  on  April  4, 1842.  The 
negotiations  were  conducted  throughout  informally;  no  proto- 
cols were  kept;  and  not  many  letters  were  exchanged.  The  first 
subject  to  come  up  was  that  of  the  northeastern  boundaries. 
For  over  half  a  century  the  description  of  the  boundary  hi  the 
Treaty  of  1783  had  been  in  dispute.  Which  was  the  real  river 
St.  Croix  therein  mentioned?  Where  was  the  "northwest  angle 
of  Nova  Scotia?  "  What  and  where  were  the  "  Highlands  "  along 
which  the  boundary  was  to  run?  Which  stream  should  be  re- 
garded as  the  "northwesternmost  head  of  the  Connecticut 
River?" 

Jay's  Treaty  had  provided  for  a  commission  to  settle  the 
dispute  on  the  St.  Croix  River.  This  commission  reported  in 
1798  that  it  had  decided  upon  the  stream  and  had  placed  a 
marker  at  its  source.1  So  that  much  of  the  boundary  was  settled. 

The  Treaty  of  Ghent  provided  for  several  boundary  commis- 
sions. Each  commission  was  to  be  composed  of  one  national  of 
each  party  to  the  treaty.  And  if  these  commissioners  should 
fail  to  agree  the  whole  dispute  should  be  referred  to  "some 
friendly  sovereign  or  State"  for  decision.  One  commission 
passed  upon  the  boundary  in  Passamaquoddy  Bay;  with  the 
result  that  the  islands  to  the  left,  including  Moose,  Dudley,  and 
Frederick  passed  to  the  United  States,  and  those  to  the  right, 
including  Grand  Manan,  passed  to  Great  Britain.2 

Another  commission  was  to  pass  upon  the  boundary  from  the 
marker  at  the  head  of  the  St.  Croix  River  to  "the  northwestern- 
most  head  of  the  Connecticut  River,  thence  down  along  the 
middle  of  that  river  to  the  forty  fifth  degree  of  north  latitude. " 
This  commission  failed  to  agree,  October  4,  1821;  and  it  devel- 
oped another  source  of  dispute.  Up  to  that  time  a  survey  made 
of  the  forty-fifth  parallel  in  1774  had  been  accepted  as  accurate; 
but  this  commission  found  that  the  true  line  should  run  three- 

1  Moore,  International  Arbitrations,  I.:  30. 

2  Ibid.,  I.:  61. 


178  LEADING  AMERICAN  TREATIES 

quarters  of  a  mile  farther  south.  To  the  north  of  this  corrected 
line,  on  Rouse's  Point,  the  United  States  had  erected  costly 
fortifications,  which  controlled  navigation  northward  to  the 
St.  Lawrence  at  that  point.  The  dispute  was  then  submitted  to 
the  King  of  the  Netherlands  for  arbitration.  The  King  refused, 
however,  to  abide  by  the  limitations  prescribed  in  the  agreement. 
He  had,  therefore,  in  his  award,  January  10, 1831.  exceeded  his 
powers;  and  for  that  reason  the  United  States  protested.1  Great 
Britain  recognized  likewise  that  the  award  was  recommendatory 
rather  than  decisive;  so  both  parties  agreed  that  the  award 
should  not  be  binding. 

President  Jackson  tried  for  five  years  to  reach  an  agreement 
with  Great  Britain  but  failed.  Van  Buren  proposed  two  methods 
of  reaching  the  desired  result;  a  commission  composed  of  an 
equal  number  of  nationals  "with  an  umpire  to  be  selected  by 
some  friendly  European  power,  or  a  commission  composed  of 
scientific  Europeans. "  !  But  the  suggestions  were  too  indefinite. 
Great  Britain  could  not  accept.  In  the  meantime  surveys  had 
been  made  by  Maine  and  Massachusetts  and  by  New  Bruns- 
wick. The  State  and  provincial  authorities  had  become  exacting 
on  questions  of  land  titles,  in  the  collection  of  taxes  on  the  fertile 
farm  lands,  and  of  supervising  timber  rights  in  the  disputed 
areas.  The  New  Brunswick  officials  arrested  some  Americans, 
which  caused  the  governor  of  Maine  to  order  out  the  militia  and 
take  possession  of  the  debatable  territory.  This  military  occupa- 
tion became  known  as  the  Aroostook  War.  President  Van 
Buren  sent  General  Winfield  Scott  to  mediate.  And  he  succeeded 
remarkably  in  persuading  the  authorities  of  Maine  and  New 
Brunswick  to  withdraw  their  armed  forces  pending  further 
negotiations. 

Secretary  of  State  Forsyth  had  sought  the  opinion  of  the 
government  of  Maine  on  the  adoption  of  a  new  boundary  to  be 
decided  upon  by  diplomatic  negotiation  rather  than  by  arbitra- 
tion. Governor  Kent  submitted  the  matter  to  the  legislature, 
which  resolved,  March  23,  1838,  first,  that  it  was  inexpedient  to 

'Moore,  International  Arbitrations,  I.:   119,   137. 
1  Message  of  March  20,  1838. 


THE  WEBSTER-ASHBURTON  TREATY,   1842  179 

approve  the  negotiation  for  a  conventional  line;  but  that  the  State 
would  insist  on  the  line  established  by  the  Treaty  of  1783: 
second,  that  the  State  had  not  assented  to  the  appointment  of  an 
arbitrator  under  the  Treaty  of  Ghent,  and  was  not  prepared  to 
consent  to  the  appointment  of  a  new  one;  and  third,  that  the 
senators  and  representatives  of  Maine  in  Congress  should  urge 
the  government  of  the  United  States  to  make  the  survey  and  to 
carry  the  boundary  thus  determined  into  operation. 

When  Webster  became  Secretary  of  State  he  decided  not  to 
dally  with  the  slow  processes  of  arbitration  in  a  matter  that 
contained  so  many  explosive  elements,  but  to  negotiate  directly 
for  a  boundary.  He  might  have  assumed  that  the  treaty  making 
power  of  the  United  States  extended  to  the  disposition  of  land 
in  the  questionable  possession  of  a  State  without  the  consent  of 
that  State,  but  he  did  not.  Not  only  were  the  jurisdictional 
rights  of  Maine  involved;  but  when  Maine  had  been  separated 
from  Massachusetts  and  admitted  to  statehood,  the  agreement 
was  that  the  public  lands  should  be  held  hi  common  and  the 
proceeds  from  their  sale  divided  equally.  A  considerable  portion 
of  these  public  lands  lay  within  the  disputed  region.  Webster 
had,  therefore,  three  parties  to  negotiate  with  rather  than  one. 

Webster  asked  Senator  Williams  of  Maine  to  consult  with  the 
governor  and  the  leading  men  of  the  State  and  to  find  out  what 
concessions  Maine  might  want  in  order  to  agree  to  a  conventional 
line.  Williams  found  a  disposition  on  the  part  of  the  leading  men 
to  yield,  if  suitable  reimbursement  for  expenses  were  made 
and  the  free  navigation  of  the  St.  John's  River  were  conceded.1 
But  Maine  would  not  appoint  commissioners  until  her  govern- 
ment should  receive  information  that  Lord  Ashburton  had  power 
to  agree  to  a  conventional  line. 

Webster  wrote  to  the  governors  of  Maine  and  Massachusetts, 
April  n,  1842,  stating  that  Lord  Ashburton  had  full  power  to 
agree  to  a  boundary  and  proposing  that  those  States  send 
commissioners  "empowered  to  confer  with  the  authorities  of  this 
government  upon  a  conventional  line,  or  line  by  agreement, 
with  its  terms,  conditions,  considerations,  and  equivalents; 
1  C.  H.  Van  Tyne,  Letters  of  Daniel  Webster,  256. 


i8o  LEADING  AMERICAN  TREATIES 

with  an  understanding,  that  no  such  line  will  be  agreed  upon 
without  the  assent  of  such  commissioners."  1 

A  curious  incident  occurred  of  which  Webster  availed  himself 
in  persuading  the  government  of  Maine  to  overcome  its  inertia. 
In  1814  Jared  Sparks  had  been  searching  the  archives  of  Paris 
for  papers  relating  to  the  Revolution.  He  found  a  letter  from 
Franklin  to  Vergennes,  dated  December  6,  1782,  with  a  map 
enclosed.  Said  Franklin:  "I  have  marked  with  a  strong  red 
line,  according  to  your  desire,  the  limits  of  the  United  States  as 
settled  by  the  preliminaries  between  the  British  and  American 
plenipotentiaries. "  Sparks  discovered  that  this  strong  red  line 
passed  westward  from  the  source  of  the  St.  Croix  River  in  such 
a  manner  as  to  exclude  all  the  territory  drained  by  streams  flow- 
ing into  the  St.  John's  River.2  The  map  supported  almost 
exactly  the  claim  made  by  Great  Britain.  Should  the  map  prove 
to  be  the  one  mentioned  by  Franklin,  Maine  would  lose  all  of 
the  territory  in  dispute.  Sparks  reported  the  fact  to  Webster. 
Accordingly,  Webster  asked  Sparks  to  go  to  Augusta  and  show 
the  map  to  the  governor.3  The  governor  declared  in  favor  of  a 
conventional  line;  and  the  legislature  chose  the  commissioners. 
Massachusetts  appointed  her  commissioners  soon  afterward. 
On  June  12,  1842,  those  from  Maine  arrived  in  Washington  and 
on  June  13,  those  from  Massachusetts.  On  the  latter  day  Lord 
Ashburton  addressed  his  first  note  to  Webster  on  the  boundary. 

Lord  Ashburton  proposed  that  the  boundary  should  run  due 
north  from  the  marker  at  the  source  of  the  St.  Croix  to  the  river 
St.  John,  then  follow  the  channel  of  that  river,  except  for  the 
Madawaska  settlement  on  the  south  side  of  the  St.  John,  which 
should  remain  with  Great  Britain.  If  this  were  conceded  he 
would  accept  the  old  survey  of  the  forty-fifth  parallel,  made  in 
1774,  and  thus  concede  to  the  United  States  Rouse's  Point  and 
add  to  the  States  of  New  York,  Vermont,  and  New  Hampshire 
considerable  strips  of  land  which  they  would  not  possess  if  the 
parallel  were  corrected.  Ashburton  expressed  himself  as  willing 

1  Webster,  Works,  VI.:  274. 

*H.  B.  Adams,  Life  and  Letters  of  Jared  Sparks,  II.:  304,  411. 
1  For  a  discussion  of  this  map,  see  Moore,  International  Arbitrations,  I.: 
154- 


THE  WEBSTER-ASHBURTON  TREATY,  1842  181 

to  concede  to  the  United  States  the  privilege  of  floating  timber 
down  the  St.  John  to  the  ocean  free  of  duty. 

The  commissioners  from  Maine  declined  this  offer  and  pro- 
posed to  include  the  Madawaska  settlement  on  the  south  side  of 
the  St.  John  and  also  a  large  stretch  of  territory  to  the  north  of 
the  St.  John  beyond  the  mouth  of  the  Madawaska.  For  several 
weeks  the  negotiations  became  what  Ashburton  called  "the 
battle  of  the  maps. "  Indeed,  if  it  had  not  been  for  the  persis- 
tence of  the  Maine  commissioners,  Webster  would  have  been 
willing  to  yield  the  Madawaska  settlement  on  the  south  of  the 
St.  John.1 

On  July  27, 1842,  Webster  put  into  the  form  of  a  memorandum 
a  description  of  the  boundaries  agreed  upon  in  the  oral  dis- 
cussions. The  boundary  should  begin  with  the  marker  at  the 
source  of  the  St.  Croix;  thence  due  north  on  the  line  run  by  the 
surveyors  in  1817  and  1818,  provided  for  in  the  Treaty  of  Ghent, 
to  the  middle  of  the  channel  of  the  St.  John;  up  the  middle  of  the 
main  channel  of  that  river  to  the  mouth  of  the  river  St.  Francis; 
thence  up  the  middle  of  the  channel  of  the  St.  Francis  and  the 
lakes  through  which  it  flows  to  the  outlet  of  Lake  Pohenaga- 
mook;  thence  southwesterly  in  a  straight  line  to  a  point  on  the 
northwest  branch  of  the  river  St.  John,  which  point  was  to  be  ten 
miles  from  the  main  stream  of  the  St.  John;  thence,  in  a  straight 
line  eight  degrees  west  of  south  to  the  point  where  the  parallel 
of  latitude  of  46  degrees  25  minutes  intersects  the  southwest 
branch  of  the  St.  John;  thence  southerly  by  that  branch  to  its 
source  hi  the  Metjarmette  portage;  thence  down  along  the 
highlands  which  divide  the  waters  that  empty  themselves  into 
the  St.  Lawrence  from  those  which  fall  into  the  Atlantic,  to  the 
head  of  Hall's  Stream;  "  thence,  down  the  middle  of  said  stream, 
till  the  line  thus  run  intersects  the  old  line  of  boundary  surveyed 
and  marked  by  Valentine  and  Collins,  previously  to  the  year 
1774,  as  the  45th  degree  of  north  latitude;"  thence  west  along 
that  old  boundary  line  to  the  St.  Lawrence  River.2 

Lord  Ashburton  replied  on  July  29:  "This  settlement  appears 

1  Webster,  Private  Correspondence,  II.:  120,  122. 

2  Webster,   Works,  VI.:   285. 


182  LEADING  AMERICAN  TREATIES 

substantially  correct  in  all  its  parts,  and  we  may  now  proceed 
without  further  delay  to  draw  up  the  treaty. "  l  As  a  matter  of 
fact,  this  part  of  the  boundary  was  incorporated  into  Article  I 
of  the  treaty  exactly  as  Webster  had  described  it.2 

The  disputed  territory  had  comprised  12,027  square  miles,  or 
7,697,280  acres.  Of  this  amount  Article  I  of  the  treaty  assigned 
to  the  United  States  7,015  square  miles,  or  4,489,600  acres,  and 
to  Great  Britain  5,012  square  miles  or  3,207,680  acres.8  It 
would  appear  that  such  an  arrangement  should  have  brought 
with  it  universal  satisfaction,  even  in  Maine.  But  for  several 
years  this  part  of  the  treaty  was  attacked  chiefly  on  the  ground 
that  the  award  of  the  King  of  the  Netherlands  had  conceded  to 
the  United  States  a  larger  area,  namely,  7,908  square  miles,  or 
893  square  miles  more  than  under  the  Webster-Ashburton 
Treaty.  These  attacks  brought  from  Webster  a  masterly  two 
days  speech  in  the  Senate,  four  years  later,  in  defense  of  the 
treaty.4  However,  the  Dutch  award  would  not,  even  though 
accepted,  have  brought  with  it  the  numerous  advantages  to  the 
people  of  Maine  that  this  treaty  provided. 

Article  III  provided  for  the  free  navigation  of  the  river  St. 
John  to  both  parties.  The  unmanufactured  products  of  forest 
and  farm  from  the  parts  of  Maine  watered  by  the  St.  John  or  its 
tributaries  should,  when  going  down  that  river  to  the  seaport  of 
St.  John,  be  treated  as  though  they  were  the  goods  of  New 
Brunswick.  A  reciprocal  privilege  through  Maine  was  granted 
to  similar  New  Brunswick  products  in  the  region  watered  by  the 
St.  John  or  its  tributaries.  This  privilege  increased  immediately 
the  value  of  forest  and  farm  lands  in  Maine.  Great  Britain 
placed  a  liberal  construction  on  this  privilege,  and  treated  the 
specified  products  of  Maine  in  the  region  described,  when  they 
reached  the  ports  of  the  United  Kingdom,  as  though  they  were 
the  products  of  New  Brunswick. 

Article  IV  made  provision  for  the  confirmation  of  land  grants 
made  by  either  party  in  the  hitherto  disputed  region  provided 

'Webster,  Works,  VI.:     288. 

*See  maps  in  Moore,  International  Arbitrations,  I.:  85,  143,  149,  156. 

•Webster,  Works,  VI.:   276. 

'Ibid.,  V.:  78. 


THE  WEBSTER-ASHBURTON  TREATY,  1842  183 

the  claimant  had  been  in  possession  for  more  than  six  years.  All 
other  equitable  possessory  claims  were  to  be  recognized  and 
adjudicated  "upon  the  most  liberal  principles  of  equity." 

Article  V  provided  for  the  disposition  of  the  so-called  "disputed 
territory  fund"  and  for  the  payment  by  the  United  States  to 
Maine  and  Massachusetts  of  $300,000,  "in  equal  moieties." 
To  the  latter  provision  Lord  Ashburton  protested  as  "irregular 
and  inadmissible  "and  wanted  it  understood  that  his  government 
incurred  "no  responsibility  for  these  engagements."1  The 
disputed  territory  fund  consisted  of  money  received  by  the  offi- 
cers of  New  Brunswick  for  licenses  issued  to  cut  timber  in  the 
disputed  territory.  This  fund  was  now  to  be  divided  between 
the  United  States  and  Great  Britain  "in  proportions  to  be  deter- 
mined by  a  final  settlement  of  boundaries. "  The  United  States 
agreed  to  pay  over  its  share  to  the  States  of  Maine  and  Mass- 
achusetts. The  United  States  agreed  further  "  to  pay  and  sat- 
isfy said  States,  respectively,  for  all  claims  for  expenses  incurred 
by  them  in  protecting  the  said  heretofore  disputed  territory 
and  making  a  survey  thereof  in  1838. "  Lord  Ashburton  objected 
again;  and  no  doubt  properly  so,  for  the  agreement  partook  of 
the  nature  of  domestic  legislation. 

Article  VI  provided  for  the  surveying  and  marking  of  the 
boundaries. 

These  articles  disposed  of  the  troublesome  dispute  over  the 
northeastern  boundary.  From  July  29  to  August  8,  1842,  the 
negotiations  progressed  rapidly  on  the  remaining  points. 

It  was  agreed  that  the  channels  in  the  St.  Lawrence  on  both 
sides  of  the  Long  Sault  Islands  and  of  Barnhart  Island,  off 
northern  New  York,  and  a  part  of  that  State,  and  of  the  Detroit 
and  St.  Clair  rivers  as  well  as  of  St.  Clair  Lake  should  be  free  and 
open  to  the  navigation  of  both  parties.  (Article  VI). 

The  commission  appointed  under  Article  VI  of  the  Treaty  of 
Ghent  to  determine  the  boundary  from  Lake  Huron  to  the  most 
northwestern  point  of  the  Lake  of  the  Woods  could  not  agree. 
Instead  of  submitting  the  dispute  to  arbitration,  the  matter  was 
left  for  Webster  and  Ashburton  to  agree  upon.  They  agreed  to 
1  Webster,  Works,  VI.:  289. 


1 84  LEADING  AMERICAN  TREATIES 

draw  the  boundary  so  as  to  assign  the  disputed  Sugar  Island  to 
the  United  States.  Lord  Ashburton  made  this  concession  on  the 
condition  that  the  channels  mentioned  in  the  preceding  para- 
graph should  be  open  to  British  navigation. 

The  next  subject  to  be  taken  up  was  the  inviolability  of 
national  territory.  In  1837  a  rebellion  had  broken  out  in  Canada. 
It  was  suppressed,  and  many  of  the  persons  engaged  in  it  had 
fled  to  the  United  States.  These  associated  themselves  with 
several  American  adventurers  and  carried  on  hostilities  against 
Great  Britain.  They  seized  Navy  Island  hi  the  Niagara  River, 
which  belonged  to  Canada.  President  Van  Buren  described 
the  situation  in  his  annual  message  of  December,  1838,  as 
follows:  "Information  has  been  given  to  me,  derived  from  offi- 
cial and  other  sources,  that  many  citizens  of  the  United  States 
have  associated  together  to  make  hostile  incursions  from  our 
territory  into  Canada,  and  to  aid  and  abet  insurrection  there, 
in  violation  of  the  obligations  and  laws  of  the  United  States, 
and  in  open  disregard  of  their  own  duties  as  citizens.  This 
information  has  been  in  part  confirmed  by  a  hostile  invasion 
actually  made  by  citizens  of  the  United  States,  in  conjunction 
with  Canadians  and  others,  and  accompanied  by  the  forcible 
seizure  of  the  property  of  our  citizens,  and  an  application  thereof 
to  the  prosecution  of  military  operations  against  the  authorities 
and  people  of  Canada. "  1 

These  daredevils  and  fanatics  engaged  the  steamboat  "Caro- 
line," owned  by  a  resident  of  Buffalo,  to  carry  their  supplies 
from  the  town  of  Schlosser,  New  York,  to  Navy  Island.  Cana- 
dian troops  guarded  the  opposite  shore.  On  the  night  of  Decem- 
ber 29,  1837,  a  body  of  volunteers  from  these  troops  crossed  the 
river  to  Navy  Island  with  the  hope  of  finding  the  "Caroline" 
there.  Being  disappointed,  they  crossed  to  Schlosser  in  New 
York;  took  forcible  possession  of  the  steamer;  killed  one  of  the 
crew,  Durfree  by  name;  tugged  the  vessel  out  into  the  current; 
and  left  it  to  drift  over  Niagara  Falls. 

The  British  and  Canadian  governments  approved  the  action  of 
the  volunteers.  Colonel  McNab,  who  had  ordered  the  attack, 
'Richardson,  Messages,  etc.,  III.:  485. 


THE  WEBSTER-ASHBURTON  TREATY,  1842  185 

was  knighted.  The  Secretary  of  State,  Forsyth,  protested  to  the 
British  minister,  H.  S.  Fox,  against  this  "extraordinary  outrage 
committed  ...  on  the  persons  and  property  of  citizens  of  the 
United  States  within  the  jurisdiction  of  the  State  of  New  York."1 
In  reply  Lord  Palmerston  asserted  that  the  destruction  of  the 
vessel  would  turn  out  to  be  justifiable,  and  he  assumed  for  the 
British  government  full  responsibility.2 

Although  frequent  expressions  of  local  sympathy  for  the 
rebels  occurred  in  New  York,  Vermont,  and  Michigan,  no  fur- 
ther diplomatic  action  was  taken  until  November,  1840.  At  that 
time  a  former  deputy  sheriff  in  Canada,  Alexander  McLeod, 
crossed  over  to  New  York  and  boasted  that  he  had  been  one  of 
the  volunteers  that  attacked  the  "Caroline"  and  that  he  had 
killed  one  of  her  crew.  He  was  arrested  by  New  York  State 
officials  and  indicted  for  murder  under  the  laws  of  New  York. 
He  was  admitted  to  bail;  but  the  threat  of  violence  by  a 
mob  overawed  the  court  and  he  was  sent  back  to  jail.  The 
British  minister,  Fox,  demanded  McLeod's  immediate  release  on 
the  ground  that  if  he  had  committed  the  act  as  charged,  he  had 
done  so  as  one  of  the  armed  forces  of  Great  Britain  and  that 
Great  Britain  assumed  full  responsibility.  Secretary  Forsyth 
replied  that  it  would  be  for  the  courts  to  decide  upon  the  validity 
of  the  defense.  The  feeling  in  Great  Britain  grew  intense. 
Palmerston  informed  the  American  minister  in  London,  Steven- 
son, that  if  McLeod  were  executed,  that  would  be  the  signal  for 
war.3  Such  was  the  situation  when  Webster  became  Secretary 
of  State  in  the  spring  of  1841. 

Webster  was  inclined  to  accept  the  British  view;4  and  if 
McLeod  had  been  in  the  custody  of  federal  officials,  he  would,  no 
doubt,  have  been  set  free.  But  McLeod  was  in  the  hands  of  the 
authorities  of  New  York.  The  best  that  Webster  could  do  was 
to  inform  the  Attorney  General,  John  J.  Crittenden,  as  to  the 
facts  in  the  case,  to  advise  him  to  see  the  governor  of  New  York 
with  the  intimation  that  if  the  indictment  were  pending  in  the 

Richardson,  Messages,  etc.,  III.:  404. 
*  Webster,  Works,  V.:  119. 
1  Bulwer,  Palmerston,  III. :  46,  49. 
4  Webster,  Works,  VI.:  251. 


186  LEADING  AMERICAN  TREATIES 

courts  of  the  United  States,  the  President  would  direct  that  a 
nolle  prosequi  be  entered.  He  advised  the  Attorney  General, 
further,  to  go  to  Lockport  where  the  trial  was  to  be  held  and  to 
see  to  it  that  the  prisoner  had  "skilful  and  eminent  counsel" 
and  that  the  counsel  would  be  furnished  with  the  material 
evidence.  But  he  was  not  to  act  as  counsel  himself.  If  the 
defense  should  be  overruled  by  the  court,  Crittenden  should  then 
inform  the  counsel  that  it  was  the  wish  of  the  government  of  the 
United  States  that  "proper  steps  be  taken  immediately  for 
removing  the  cause,  by  writ  of  error,  to  the  Supreme  Court  of 
the  United  States. "  1  Crittenden  proceeded  as  he  had  been 
advised;  and  it  is  probable  that  no  other  Attorney  General  has 
ever  gone  on  a  similar  errand. 

The  counsel  asked  for  McLeod's  release  on  a  writ  of  habeas 
corpus  before  the  supreme  court  of  New  York  on  the  ground 
that  if  he  had  any  part  in  the  killing  of  Durf  ree,  he  had  acted  as  a 
soldier  under  orders  in  an  expedition  sanctioned  by  the  govern- 
ment of  Great  Britain.  McLeod's  release  was  denied.2  The 
trial  proceeded.  The  counsel  undertook  to  prove  that  McLeod 
had  not  been  present  during  the  attack  upon  the  "Caroline." 
They  were  successful,  and  McLeod  was  acquitted. 

This  case  led  Congress  to  pass  an  act,  August  29,  1842, 
drafted  by  Webster,  granting  power  to  justices  of  the  Supreme 
and  district  courts  of  the  United  States  "  to  grant  writs  of  habeas 
corpus  in  all  cases  of  any  prisoner  or  prisoners  in  jail  or  confine- 
ment, where  he,  she,  or  they,  being  subjects  or  citizens  of  a 
foreign  state,  and  domiciled  therein,  shall  be  committed  or 
confined,  or  in  custody,  under  or  by  any  authority  or  law,  or 
process  founded  thereon,  of  the  United  States,  or  of  any  one  of 
them,  for  or  on  account  of  any  act  done  or  omitted  under  any 
alleged  right,  title,  authority,  privilege,  protection,  or  exemption, 
set  up  or  claimed  under  the  commission,  or  order,  or  sanction  of 
any  foreign  state  or  sovereignty,  the  validity  and  effect  whereof 
depend  upon  the  law  of  nations,  or  under  color  thereof. "  The 

'Webster,  Works,  VI.:   262. 

1  25  Wendell  482;  and  for  a  criticism  of  the  opinion,  see  26  Wendell, 
appendix. 


THE  WEBSTER-ASHBURTON  TREATY,  1842  187 

act  authorized  these  judges  to  hear  such  cases  and  upon  the 
presentation  of  sufficient  proof  to  release.1 

The  attack  upon  the  "Caroline"  had  two  important  results. 
It  caused  Webster  to  express  in  what  has  become  classic  form  the 
principle  of  the  right  of  intervention  for  national  self  defense. 
He  used  the  expression  first  in  a  note  to  the  British  minister, 
Fox,  and  he  repeated  it  to  Lord  Ashburton  on  July  27,  1842. 
"The  undersigned  trusts  that,  when  her  Britannic  Majesty's 
government  shall  present  the  grounds  at  length  on  which  they 
justify  the  local  authorities  of  Canada  in  attacking  and  destroy- 
ing the  "Caroline,"  they  will  consider  that  the  laws  of  the 
United  States  are  such  as  the  undersigned  has  now  represented 
them,  and  that  the  government  of  the  United  States  has  always 
manifested  a  sincere  disposition  to  see  those  laws  effectually  and 
impartially  administered.  If  there  have  been  cases  in  which 
individuals,  justly  obnoxious  to  punishment,  have  escaped,  this 
is  no  more  than  happens  in  regard  to  other  laws.  Under  these 
circumstances,  and  under  those  immediately  connected  with  the 
transaction  itself,  it  will  be  for  Her  Majesty's  government  to 
show  upon  what  state  of  facts  and  what  rules  of  national  law  the 
destruction  of  the  "Caroline"  is  to  be  defended.  It  will  be  for 
that  government  to  show  a  necessity  of  self-defence,  instant, 
overwhelming,  leaving  no  choice  of  means,  and  no  moment  for 
deliberation. "  2  The  last  sentence  contains  the  statement  of  the 
principle.  Webster  continued:  "It  will  be  for  it  to  show,  also, 
that  the  local  authorities  of  Canada,  even  supposing  the  necessity 
of  the  moment  authorized  them  to  enter  the  territories  of  the 
United  States  at  all,  did  nothing  unreasonable  or  excessive; 
since  the  act,  justified  by  the  necessity  of  self-defence,  must  be 
limited  by  that  necessity,  and  kept  clearly  within  it. " 

Lord  Ashburton  replied  that  he  agreed  as  to  the  principles  of 
international  law  applicable  to  the  unfortunate  case.  But,  in  his 
estimation,  the  dispute  was  not  of  a  kind  to  be  susceptible  of  any 
settlement  by  a  convention  or  treaty.  Said  he:  "  Respect  for  the 
inviolable  character  of  the  territory  of  independent  nations  is  the 

1  Webster,  Works,  VI.:  267 

2  Ibid.,  VT.r  261,  293. 


188  LEADING  AMERICAN  TREATIES 

most  essential  foundation  ol  civilization. "  Being  in  accord  with 
Webster  as  to  principles,  he  undertook  by  a  recital  of  facts, 
taken  largely  from  American  sources,  to  show  that  the  action  of 
Great  Britain  in  the  "Caroline"  affair  came  within  the  limits 
prescribed  by  those  principles.  "Looking  back  to  what  passed 
at  this  distance  of  time,"  wrote  Ashburton,  "what  is,  perhaps, 
most  to  be  regretted  is,  that  some  explanation  and  apology  was 
not  immediately  made;  this,  with  a  frank  explanation  of  the 
necessity  of  the  case,  might,  and  probably  would,  have  prevented 
much  of  the  exasperation,  and  of  the  subsequent  complaints  and 
recriminations  to  which  it  gave  rise. "  *  This  quotation  has  at 
times  been  interpreted  as  an  apology;  which  it  was  not;  nor  was 
it  so  received  by  Webster. 

Said  Webster  in  reply,  "the  President  is  content  to  receive 
these  acknowledgements  and  assurances  in  the  conciliatory 
spirit  which  marks  your  Lordship's  letter,  and  will  make  this 
subject,  as  a  complaint  of  violation  of  territory,  the  topic  of  no 
further  discussion  between  the  two  governments. "  2 

The  second  great  result  of  the  "Caroline"  affair  led  to  the 
embodiment  in  the  treaty  of  an  article  on  extradition,  as  a  means 
of  checking  the  lawless  elements  along  the  border.  The  sugges- 
tion of  this  remedy  appears  to  have  been  due  to  Senator  Wood- 
bridge  of  Michigan;3  but  the  drafting  of  the  article  itself  was 
left  to  Webster. 

Jay's  Treaty  had  provided  for  the  return  of  fugitives  charged 
with  murder  or  forgery;  but  that  article  expired  by  limitation 
on  October  28, 1807.  For  many  years  previous  to  the  Webster- 
Ashburton  Treaty,  a  condition  had  existed,  such  as  Senator 
Woodbridge  put  it  in  the  Senate,  April  7,  1849:  "If  the  perpetra- 
tor of  a  crime  can  reach  a  bark  canoe  or  a  light  skiff,  and  detach 
himself  from  the  shore,  he  may  in  a  few  minutes  defy  pursuit,  for 
he  will  be  within  a  foreign  jurisdiction. " 

The  Treaty  of  1842,  Article  X,  provided  for  the  extradition  of 
all  fugitives  from  justice  charged  with  "murder,  or  assault  with 

1  Webster,  Works,  VI.:  294. 
'Ibid.,  VI.:  302. 
•Ibid.,  V.:   140. 


THE  WEBSTER-ASHBURTON  TREATY,  1842  189 

intent  to  commit  murder,  or  piracy,  or  arson,  or  robbery,  or 
forgery,  or  the  utterance  of  forged  paper,  committed  within 
the  jurisdiction  of  either." 

This  article  was  later  amended  to  include,  in  1889,  man- 
slaughter, when  voluntary;  counterfeiting  or  altering  money; 
uttering  or  bringing  into  circulation  counterfeit  or  altered  money; 
embezzlement;  larceny;  receiving  any  money,  valuable  security, 
or  other  property,  knowing  the  same  to  have  been  embezzled, 
stolen,  or  fraudulently  obtained;  fraud  by  a  bailee,  banker, 
agent,  factor,  trustee,  or  director  or  member  or  officer  of  any 
company,  made  criminal  by  the  laws  of  both  countries;  perjury 
or  subornation  of  perjury;  rape;  abduction;  child  stealing; 
kidnapping;  burglary;  housebreaking  or  shop  breaking;  piracy 
by  the  law  of  nations;  revolt,  or  conspiracy  to  revolt  by  two  or 
more  persons  on  board  a  ship  on  the  high  seas,  against  the 
authority  of  the  master;  wrongfully  sinking  or  destroying  a 
vessel  at  sea,  or  attempting  to  do  so;  assaults  on  board  a  ship 
on  the  high  seas,  with  intent  to  do  grievous  bodily  harm;  crimes 
and  offenses  against  the  laws  of  both  countries  for  the  suppres- 
sion of  slavery  and  slavetrading.  But  no  fugitive  criminal  was 
to  be  surrendered  for  an  offense  of  a  political  character.1 

In  1900  the  list  was  amended  to  include:  obtaining  money, 
valuable  securities  or  other  property  by  false  pretenses;  wilful 
and  unlawful  destruction  or  obstruction  of  railroads  which 
endangers  human  life;  and  procuring  abortion.2  The  list  was 
further  amended  in  1905  to  include:  bribery,  defined  to  be  the 
offering,  giving,  or  receiving  of  bribes  made  criminal  by  the  laws 
of  both  countries;  and  offenses,  if  made  criminal  by  the  laws  of 
both  countries,  against  bankruptcy  law.3 

The  third  series  of  difficulties  with  Great  Britain  that  the 
Webster-Ashburton  Treaty  settled,  or  paved  the  way  for  settle- 
ment, was  that  arising  out  of  the  status  of  the  international 
slave  trade.  Both  countries  had  long  been  interested  in  the 
suppression  of  this  trade.  The  source  of  this  nefarious  traffic  lay 

1Malloy,  Treaties,  I.:  740. 
2  Ibid.,  L:  781. 

'Ibid.,  I.:  799.  On  the  general  subject  of  extradition,  see  J.  B.  Moore, 
A  Treatise  on  Extradition  and  Interstate  Rendition. 


loo  LEADING  AMERICAN  TREATIES 

along  three  thousand  miles  of  African  coast  line  between  Senegal 
and  Cape  Frio.  Dotting  this  line  were  numerous  stations,  to 
which  the  nearby  chiefs  brought  their  captives  and  sold  them  for 
some  finery  or  firewater.  The  slaves  were  there  confined  in 
pens,  holding  a  ship  load  or  more,  and  were  held  ready  to  be 
loaded  on  a  slaver  at  a  moment's  notice.  These  vessels  looked 
like  ordinary  vessels  from  a  distance,  but  they  carried  concealed 
slave  decks,  and  had  on  board  large  boilers  to  cook  rice  for 
the  slaves,  extra  water  casks,  numerous  shackles,  and  a  large 
crew.  They  carried  two  sets  of  papers,  flags  of  all  nations,  and 
officers  ready  to  adapt  themselves  to  an  emergency.  The 
destination  of  the  cargo  was  usually  Porto  Rico,  Cuba,  Brazil, 
or  even  some  port  in  southern  United  States. 

As  early  as  June,  1818,  Castlereagh  had  turned  to  the  Ameri- 
can minister,  Richard  Rush,  with  a  project  of  a  convention. 
This  provided  for  mixed  courts  to  sit  on  British  colonial  soil  and 
the  reciprocal  right  of  visit  and  search  of  suspected  slavers  flying 
the  British  or  American  flags.  Secretary  of  State  Adams 
doubted  the  constitutionality  of  the  former  and,  as  for  the  latter, 
he  knew  full  well  that  the  American  people  had  had  enough  of 
British  visit  and  search  before  the  War  of  1812. l  The  United 
States  did,  however,  show  its  willingness  to  cooperate  by  passing 
several  laws.  By  the  act  of  April  20,  1818,  the  burden  of  proof 
was  thrown  on  the  person  detected  bringing  in  negroes  that  he 
did  so  lawfully.  By  the  act  of  March  3, 1819,  the  President  was 
authorized  to  use  naval  vessels  to  seize  and  to  bring  into  port 
ships  engaged  in  the  slave  trade  if  under  the  control  of  Americans; 
he  was  authorized  to  send  back  negroes  brought  in  illegally, 
and  to  appoint  persons  to  receive  such  negroes  on  the  coast  of 
Africa.  The  act  of  May  15,  1820,  made  the  slave  trade  piracy. 
But  the  slave  trade  continued  to  grow.  It  was  estimated 
that  over  three  hundred  vessels  were  busily  engaged  in  the 
traffic.  Negotiations  were  resumed  in  London  and  a  convention 
signed,  March  13,  1824.  But  the  Senate  tinkered  the  provisions 
on  the  reciprocal  right  of  visit  and  search  in  such  a  manner  that 
Great  Britain  refused  to  approve  the  amendments. 

1  American  State  Papers,  Foreign  Relations,  V.:  70. 


THE  WEBSTER-ASHBURTON  TREATY,  1842  191 

By  1840  the  American  flag  had  become  the  protector  of  every 
slaver  bold  enough  to  fly  it.  Webster  and  Ashburton  took  up  the 
matter  and  came  to  the  agreement  stated  in  Article  VIII  of  the 
treaty.  Each  party  was  to  maintain  an  adequate  naval  force  off 
the  coast  of  Africa.  It  was  understood  that  the  vessels  of  the 
American  navy  were  to  visit  and  search  suspected  slavers  flying 
the  American  flag  and  to  take  charge  of  the  offenders  in  accord- 
ance with  American  laws.  The  consequent  appearance  of 
American  war  vessels  off  the  African  coast  had  the  effect  of 
making  the  stars  and  stripes  appear  less  frequently  at  the  mast 
head  of  slavers.  The  United  States  failed  to  lend  its  full  coopera- 
tion in  the  suppression  of  the  slave  traffic  until  after  the  Civil 
War  had  begun.1 

Merged  with  this  negotiation  on  the  slave  trade  occurred  an 
effort  to  settle  the  case  of  the  "Creole."  This  American  brig 
sailed  from  Hampton  Roads  on  October  27,  1841,  with  a  cargo 
of  135  slaves,  bound  for  New  Orleans.  While  at  sea,  on  Novem- 
ber 7,  the  slaves  mutinied,  killed  one  of  the  owners  of  the  cargo, 
secured  possession  of  the  vessel,  and  ordered  the  mate  under 
threat  of  death  to  steer  for  Nassau  in  the  Bahama  Islands. 
There  the  slaves,  except  those  implicated  in  the  murder,  were 
released  by  the  British  authorities  on  the  ground  that  slavery 
did  not  exist  in  the  Bahamas.  The  United  States  asked  for 
their  surrender  for  the  reason  that  the  ship  had  entered  in  dis- 
tress, that  such  an  entrance  into  a  foreign  port  did  not  suspend 
the  operation  of  the  laws  of  the  United  States,  or  affect  hi  any 
way  the  legal  relations  of  the  persons  on  board.  Webster  argued 
ably  the  rights  of  the  United  States  in  a  long  letter  to  Lord 
Ashburton  on  August  i,  i842.2  Ashburton  replied  that  the  news 
of  the  "Creole"  had  reached  London  only  a  few  days  before  his 
departure.  He  urged,  therefore,  that  the  matter  be  omitted 
from  the  treaty  and  referred  to  London  for  adjustment.  In  the 
meantime,  he  agreed  "that  there  shall  be  no  officious  inter- 
ference with  American  vessels  driven  by  accident  or  by  violence  " 
into  the  ports  of  the  British  possessions  on  the  southern  borders 

1  See  treaties  of  1862,  1863,  1870,  and  1890  in  Malloy,  Treaties. 
1  Webster,  Works,  VI.:  303. 


IQ2  LEADING  AMERICAN  TREATIES 

of  the  United  States. l  Webster  expressed  regret  but  acquiesced.2 
In  1853  the  case  was  submitted  to  arbitration;  and  the  umpire, 
Joshua  Bates  of  the  firm  of  Baring  Brothers,  London,  sustained 
the  argument  that  Webster  had  made  in  1842,  and  awarded  to 
the  United  States  the  sum  of  $no,33o.3 

There  was  one  other  point  mentioned  in  the  negotiations,  but 
omitted  from  the  treaty,  on  which  Webster  achieved  definite 
results.  And  that  was  on  the  question  of  the  impressment  of 
American  sailors.  Ashburton  pleaded  that  he  had  no  instructions 
on  that  subject.  Nevertheless,  Webster  reviewed  the  American 
argument.  He  repeated  the  principle  laid  down  by  Jefferson, 
that  "  the  simplest  rule  will  be,  that  the  vessel  being  American 
shall  be  evidence  that  the  seamen  on  board  are  such. " 

Webster  continued:  "Fifty  years'  experience,  the  utter  failure 
of  many  negotiations,  and  a  careful  reconsideration,  now  had,  of 
the  whole  subject,  at  a  moment  when  passions  are  laid,  and  no 
present  interest  or  emergency  exists  to  bias  the  judgment,  have 
fully  convinced  this  government  that  this  is  not  only  the  sim- 
plest and  best,  but  the  only  rule,  which  can  be  adopted  and 
observed,  consistently  with  the  rights  and  honor  of  the  United 
States  and  the  security  of  their  citizens.  That  rule  announces, 
therefore,  what  will  hereafter  be  the  principle  maintained  by 
their  government.  In  every  regularly  documented  American 
merchant  vessel  the  crew  who  navigate  it  will  find  their  protec- 
tion in  the  flag  which  is  over  them. "  4 

Ashburton  replied  that  the  note  would  be  transmitted  without 
delay  to  his  government.  It  need  hardly  be  said  that  Webster's 
statement  became  just  as  binding  upon  Great  Britain  as  any 
separate  article  in  the  treaty  could  possibly  have  made  it. 

On  August  9, 1842,  the  treaty  was  signed.  The  Senate  advised 
ratification  on  August  20;  the  President  ratified  on  August  22; 
the  ratifications  were  exchanged  on  October  13;  and  on  Novem- 
ber 10,  the  President  proclaimed  the  treaty. 

Never  have  diplomatic  negotiations  been  conducted  on  a 

1  Webster,  Works,  VI.:  313. 

tlbid.,  VI.:  317. 

'Moore,  International  Arbitrations,  I.:  417. 

•Webster,  Works,  VI.:  325. 


THE  WEBSTER-ASHBURTON  TREATY,  1842  193 

higher  plane  than  between  Webster  and  Ashburton.  Each  was 
actuated  with  a  genuinely  friendly  spirit  toward  the  other; 
and  each  was  actuated  with  the  deepest  patriotic  motives 
toward  his  country.  Both  knew  thoroughly  the  subject  matter 
committed  to  their  charge;  and  both  were  well  versed  in  the 
principles  of  international  law.  They  sat  as  judges  endeavoring 
to  reach  a  just  conclusion,  rather  than  as  partisans  attempting 
to  over-reach  each  other  and  to  win  their  case. 

BIBLIOGRAPHY 

CURTIS,  GEORGE  TICKNOR. — Life  of  Danid  Webster,  2  volumes,  New  York, 

1870. 
MclNTiRE,  J.W. — The  Writings  and  Speeches  of  Daniel  Webster,  18  volumes, 

Boston,  1903. 
MCMASTER,  J.  B. — History  of  the  United  States,  volume  VII.     New  York, 

1910 

MOORE,  J.  B. — International  Arbitrations,  volume  I.  Washington,  1898. 
TIFFANY,  ORRIN  E. — Relations  of  the  United  States  to  the  Canadian  Rebellion 

of  1537-1838.    Ann  Arbor,  1905. 

WEBSTER,  DANIEL. — Letters.  Edited  by  C.  H.  Van  Tyne.  New  York,  1902. 
WEBSTER,  DANIEL. — Private  Correspondence.  2  volumes.  Edited  by  Fletcher 

Webster.    Boston,  1857. 
WEBSTER,  DANIEL. — Works,  volumes  II,  V,  and  VI.    Boston,  1851. 


CHAPTER  X 
THE  TREATY  OF  GUADALUPE  HIDALGO,  1848 

"Sister  republics,  may  the  two  countries  ever  maintain  the  most  friendly 
relations  in  all  their  intercourse." — CLIFFORD  AND  SEVDSR  TO  PRESIDENT 
PENA  Y  PENA. 

"I  desire  nothing  more  ardently  than  that  our  treaty  may  be  the 
immutable  base  of  that  constant  harmony  and  good  understanding  which 
should  prevail  with  sincerity  between  the  two  republics,  for  the  advance- 
ment of  their  happiness,  their  greatness,  and  their  respectability  in  the 
universal  society  of  nations." — FROM  THE  REPLY  OF  PENA  Y  PENA. 

President  Tyler  signed  the  joint  resolution  of  Congress  for 
the  admission  into  the  union  of  the  republic  of  Texas  March  i, 
1845.  Three  days  later  Polk  was  inaugurated.  The  part  of  his 
address  that  people  at  home  and  abroad  read  with  greatest 
interest  related  to  Texas.  He  asserted  that  the  Lone  Star  State 
had  once  been  a  part  of  the  United  States;  that  the  region  had 
been  unwisely  ceded  to  Spain  in  1819;  that  Texas  had  been 
independent  since  1836;  and  that  she  had  a  complete  right  to 
dispose  of  her  territory  and  to  merge  her  sovereignty  with  that 
of  the  United  States.  "I  regard  the  question  of  annexation  as 
belonging  exclusively  to  the  United  States  and  Texas.  They  are 
independent  powers  competent  to  contract,  and  foreign  nations 
have  no  right  to  interfere  with  them  or  to  take  exceptions  to 
then-  reunion. "  l 

But  the  Mexican  minister  in  Washington,  Sefior  Almonte, 
addressed  to  the  Secretary  of  State,  March  6,  1845,  a  vehement 
protest  against  the  joint  resolution.  The  United  States  had 
committed  the  most  unjust  act  of  aggression  against  a  friendly 
state  that  could  be  found  in  the  annals  of  modern  history. 
The  United  States  had  despoiled  Mexico  of  a  large  part  of  her 
territory  by  admitting  into  the  union  Texas,  "an  integrant 
portion  of  the  Mexican  territory."  And  he  demanded  his 
passports.2 

'Richardson,  Messages,  etc.,  IV.:  380. 
1  Sen.  Doc.  I,  29  Congress,  i  sess.,  38. 

194 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          195 

Polk  chose  for  his  Secretary  of  State,  James  Buchanan,  who 
entered  upon  his  duties  March  10,  1845.  On  that  very  day 
he  replied  to  Almonte's  protest.  The  admission  of  Texas  was, 
he  stated,  "irrevocably  decided,  so  far  as  the  United  States  are 
concerned. "  He  repeated  that  Texas  had  long  since  achieved 
her  independence  of  Mexico,  and  that,  therefore,  Mexico  had  no 
just  cause  of  complaint.  He  added  that  the  President  regretted 
that  the  government  of  Mexico  should  have  taken  offense; 
and  he  assured  Almonte  that  the  President  would  make  strenu- 
ous efforts  to  reach  an  amicable  adjustment  of  outstanding 
disputes.1 

The  Mexican  government  had  virtually  decided  to  recognize 
the  independence  of  Texas;  but  to  tolerate  her  annexation  to 
the  United  States  might  endanger  the  existence  of  Mexico  her- 
self; so  thought  Cuevas,  the  Minister  of  Foreign  Relations,  in 
March,  1845.  On  March  28,  Cuevas  wrote  to  the  American 
minister  in  Mexico,  Wilson  Shannon,  that  diplomatic  relations 
could  not  continue  between  the  two  countries.  What  could 
he  add  to  what  had  already  been  said  in  protest?  "Nothing 
more  than  to  lament  that  free  and  republican  nations,  neighbors 
worthy  of  a  fraternal  union  founded  in  mutual  interest  and  a 
common  and  noble  loyalty,  should  sever  their  relations  by 
reason  of  an  event  which  Mexico  has  endeavored  to  forestall,  but 
which  the  United  States  had  carried  through  and  which  is  as 
offensive  to  the  first  as  it  is  unworthy  of  the  good  name  of  the 
American  union."  He  added  that  Mexico  would  oppose  the 
annexation  of  Texas  "with  all  the  earnestness  which  becomes  its 
honor  and  sovereignty. "  !  Such  words  threatened  war. 

The  President,  Herrera,  called  a  special  session  of  Congress 
to  meet  on  July  i,  1845,  for  the  purpose  of  considering  among 
other  subjects  those  relative  to  the  United  States  and  the  depart- 
ment of  Texas.  Congress  met;  and  on  July  21, 1845,  Cuevas 
proposed  the  following  resolution:  "As  soon  as  the  government 
ascertains  that  the  department  of  Texas  has  united  itself  to  the 
American  Union,  or  that  the  troops  of  the  latter  have  invaded  it, 

1  Sen.  Doc.  I,  29  Congress,  i  sess.,  39. 

2  Rives,  United  States  and  Mexico,  I.:  697,  701. 


196  LEADING  AMERICAN  TREATIES 

it  shall  declare  that  the  nation  is  at  war  with  the  United  States 
of  North  America.  This  war  shall  be  conducted  for  the  purpose 
of  saving  the  integrity  of  the  Mexican  territory  within  its  ancient 
limits — recognized  by  the  United  States  in  the  treaties  from  the 
year  1828  to  1836 — and  for  the  purpose  of  assuring  the  threat- 
ened independence  of  the  nation. "  l 

On  that  same  day  the  Minister  of  Finance  asked  the  Mexican 
Congress  to  authorize  a  loan  of  $15,000,000.  Congress  did 
authorize  the  loan  on  September  15,  1845;  but  it  failed  to 
authorize  the  declaration  of  war.  By  the  end  of  July,  1845, 
General  Taylor  had  arrived  at  Corpus  Christi  and  proceeded  to 
occupy  the  territory  between  the  Neuces  and  the  Rio  Grande. 

But  a  war  with  Mexico  was  not  what  President  Polk  wanted. 
He  had  the  Oregon  dispute  with  Great  Britain  on  his  hands. 
The  support  of  Congress  in  favor  of  a  war  policy  toward  Mexico 
would  be  doubtful.  And  the  only  valid  reason  for  war  consisted 
hi  the  failure  of  Mexico  to  satisfy  the  claims  of  Americans. 
He  decided  to  attempt  to  reestablish  diplomatic  relations.  But 
the  news  of  the  warlike  spirit  of  the  Mexican  government  made 
him  uncertain  as  to  whether  an  American  minister  would  be 
received.  He  instructed  Secretary  Buchanan  to  write  to  the 
American  consul,  John  Black,  in  the  city  of  Mexico,  September 
17,  1845,  to  ascertain  whether  the  Mexican  government  would 
receive  "an  envoy  from  the  United  States,  intrusted  with  full 
power  to  adjust  all  the  questions  between  the  two  governments. 
Should  the  answer  be  in  the  affirmative,  such  an  envoy  will  be 
immediately  despatched  to  Mexico." 

On  the  strength  of  the  information  furnished  by  Polk's  secret 
agent  in  Mexico,  W.  S.  Parrott,  the  President  had  conferred  with 
John  Slidell  of  New  Orleans  and  asked  him  to  undertake  the 
mission.3  Consul  Black's  reply  did  not  reach  Washington  until 
November  9,  1845,  when  Parrott  appeared  with  it  in  person. 
The  Mexican  Minister  of  Foreign  Relations  had  expressed  in 
equivocal  terms  that  Mexico  would  receive  a  "commissioner" 

1  RivM,  UniUd  States  and  Mexico,  II.:  59. 
*H.  E.  Doc.  60,  30  Cong.,  i  sess.,  12. 
•Polk,.Dwry,  I.:34. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          197 

with  full  powers  to  settle  the  "present  dispute. "  And  he  made 
this  disposition  on  the  part  of  Mexico  conditional  upon  "the 
previous  recall  of  the  whole  naval  force  now  lying  in  sight  of  our 
port  of  Vera  Cruz. "  1 

Polk  directed  Slidell  to  go  to  Pensacola  and  there  await 
instructions.  The  first  subject  which  was  to  engage  SlidelFs 
attention  was  the  claims  of  American  citizens  against  Mexico. 
"The  history  of  no  civilized  nation  presents,"  wrote  Secretary 
Buchanan,  "in  so  short  a  period  of  time,  so  many  wanton 
attacks  upon  the  rights  of  persons  and  property  as  have  been 
endured  by  citizens  of  the  United  States  from  the  Mexican 
authorities."  Ten  years  before,  Jackson  had  sent  a  special 
message  to  the  Senate  on  this  subject,  in  which  he  had  mentioned 
that  the  conduct  of  Mexico  "would  justify,  in  the  eyes  of  all 
nations,  immediate  war. "  Jackson  had  asked  for  an  act  author- 
izing reprisals  by  the  use  of  naval  force.  Both  the  Senate  and 
the  House  recommended  that  another  effort  be  made  to  obtain 
a  just  settlement.  This  was  done.  Mexico  made  fair  promises, 
but  evaded  all  compliance  with  them.  On  April  n,  1839,  an 
agreement  was  reached  to  arbitrate  these  claims.  By  1841, 
February,  the  commission  had  awarded  to  the  United  States  on 
behalf  of  American  claimants  $2,026,139;  and  had  not  then 
disposed  of  all  of  the  claims.  Mexico  found  it  inconvenient  to 
comply  with  the  award.  Again  the  United  States  agreed  to  a 
convention,  January  30,  1843,  by  which  the  interest  on  the  sum 
awarded  should  be  paid  annually  and  the  principal  by  install- 
ments. Mexico  paid  these  up  to  April 30,  1843,  and  since  that 
time  she  had  paid  neither.  Still  another  convention  was  entered 
into  in  regard  to  American  claims;  but  Mexico  had  "interposed 
the  same  evasions,  difficulties,  and  delays. "  It  became,  there- 
fore, Slidell'sduty  to  impress  upon  the  Mexican  government  the 
grave  injustice  of  their  conduct,  the  patient  forbearance  of  the 
United  States,  and  the  need  for  a  speedy  adjustment. 

"But,"  said  Buchanan,  "in  what  manner  can  this  duty  be 
performed  consistently  with  the  amicable  spirit  of  your  mission? 
The  fact  is  but  too  well  known  to  the  world,  that  the  Mexican 
XH.  R.  Doc.  60,  30  Cong.,  i  sess.,  16. 


198  LEADING  AMERICAN  TREATIES 

government  are  not  now  in  a  condition  to  satisfy  these  claims 
by  the  payment  of  money.  Unless  the  debt  should  be  assumed 
by  the  government  of  the  United  States,  the  claimants  cannot 
receive  what  is  justly  their  due.  Fortunately,  the  joint  resolu- 
tion of  Congress,  approved  ist  March,  1845,  'for  annexing  Texas 
to  the  United  States,'  presents  the  means  of  satisfying  these 
claims  in  perfect  consistency  with  the  interests,  as  well  as  the 
honor,  of  both  republics.  It  has  reserved  to  this  government  the 
adjustment  'of  all  questions  of  boundary  that  may  arise  with 
other  governments.'  This  question  of  boundary  may,  therefore, 
be  adjusted  in  such  a  manner  between  the  two  republics  as  to 
cast  the  burden  of  the  debt  due  to  American  claimants  upon  their 
own  government,  whilst  it  will  do  no  injury  to  Mexico. " 

Buchanan  pointed  out  the  reasons  for  the  claim  of  Texas 
to  the  Rio  Grande  from  its  mouth  to  its  source  as  the  boundary. 
The  western  boundary  of  the  Louisiana  Purchase  had  been  the 
Rio  Grande.  This  had  been  given  up  in  1819;  but  when  Texas 
achieved  her  independence  by  the  battle  of  San  Jacinto,  April, 
1836,  her  jurisdiction  extended  to  the  Rio  Grande.  Representa- 
tives of  the  people  in  the  region  between  the  Nueces  and  the 
Rio  Grande  had  taken  part  in  the  legislative  and  constitutional 
deliberations  of  Texas.  The  United  States  desired  to  deal 
liberally  with  Mexico;  and  Slidell  was  empowered  to  offer  that 
the  United  States  would  assume  all  the  just  claims  of  American 
citizens  against  Mexico  for  the  boundary  established  by  the 
Congress  of  Texas,  beginning  at  "  the  mouth  of  the  Rio  Grande; 
thence  up  the  principal  stream  of  said  river  to  its  source;  thence 
due  north  to  the  forty-second  degree  of  north  latitude."  If 
Mexico  would  add  "the  narrow  strip  of  territory  in  the  valley  of 
New  Mexico,  west  of  the  Rio  Grande,"  Slidell  might  agree  to 
pay  $5,000,000  for  it. 

The  last  subject  in  the  instructions  related  to  California. 
Information  possessed  by  the  State  Department  led  to  the  ap- 
prehension that  both  Great  Britain  and  France  had  "designs 
upon  California."  Slidell  should  ascertain  whether  Mexico 
had  any  intention  of  ceding  it.  The  government  of  California 
was  only  nominally  dependent  on  Mexico;  and  this  was 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          199 

especially  true  since  the  recent  rebellion,  which  had  sent  back 
to  Mexico  Governor  Micheltorena  with  his  convict  soldiers. 
Slidell  was  informed  that  "Money  would  be  no  object,  when 
compared  with  the  value  of  the  acquisition."  For  any  line 
running  due  west  from  the  Rio  Grande  so  as  to  include  Monterey, 
Slidell  might  offer  $25,000,000.  And  for  any  line  running  due 
west  so  as  to  include  the  harbor  and  bay  of  San  Francisco,  he 
might  offer  $20,000,000.  Full  powers  for  the  concluding  of  a 
treaty  were  enclosed  with  the  instructions.  Finally,  Slidell  was 
informed  "Your  mission  is  one  of  the  most  delicate  and  impor- 
tant which  has  ever  been  confided  to  a  citizen  of  the  United 
States."1 

These  instructions  had  been  approved  at  a  cabinet  meeting 
on  November  8,  1845. 2  Supplementary  letters  from  Buchanan 
to  Slidell  show  that  Polk  was  willing  to  forego  the  acquisition  of 
California  if  it  should  appear  possible  only  to  adjust  the  claims 
and  to  settle  the  boundary  of  Texas.3  Slidell  stepped  ashore  at 
Vera  Cruz  on  November  29,  1845 ;  and  within  a  week  the  Ameri- 
can consul  announced  his  arrival  to  the  Minister  of  Foreign 
Relations.  Just  seven  weeks  had  passed  since  that  minister 
had  consented  to  receive  a  commissioner  from  the  United 
States. 

The  minister  procrastinated.  He  had  not  expected  an  envoy 
until  January.  The  opposition  was  calling  him  a  traitor  for 
entering  into  the  arrangement  with  the  United  States;  and  the 
opening  of  negotiations  might  provoke  a  revolution  and  destroy 
Herrera's  administration.4  On  December  6,  1845,  Slidell  wrote 
the  usual  formal  note  to  the  Minister  of  Foreign  Relations 
asking  when  he  might  be  received  by  the  President,  and  he 
enclosed  a  copy  of  his  credentials.  He  received  no  reply.  On 
December  15,  he  wrote  again.  The  minister  replied  that  the 
matter  was  under  consideration  by  the  council.  And  on  De- 
cember 17  the  council  published  its  decision:  "The  Supreme 
Government  is  advised  that  the  agreement  which  it  entered 

xSen.  Doc.  52,  30  Cong.,  i  sess.,  51. 

2  Polk,  Diary,  I.:  93. 

3  Buchanan,  Works,  VI.:  311,  345. 
4H.  R.  Doc.  60,  30  Cong.,  i  sess.,  23. 


200  LEADING  AMERICAN  TREATIES 

into  to  admit  a  plenipotentiary  of  the  United  States  with  spe- 
cial powers  to  treat  of  the  affairs  of  Texas,  does  not  compel  it  to 
receive  an  Envoy  Extraordinary  and  Minister  Plenipotentiary 
to  reside  near  the  Government,  in  which  character  Mr.  Slidell 
comes  according  to  his  credentials. "  l  On  December  20,  Slidell 
was  informed  officially  that  he  could  not  be  received.2 

Slidell  decided  to  await  further  instructions  from  home. 
While  waiting  he  witnessed  a  bloodless  and  successful  revolution 
staged  by  General  Paredes  on  the  basis  that  President  Herrera 
had  lost  public  confidence,  because  he  had  tried  to  evade  war 
with  the  United  States.  Slidell  hoped  that  the  need  for  money 
might  make  the  new  administration  more  tractable.  New 
instructions  arrived  in  March,  1846;  and  these  directed  Slidell  to 
apply  to  the  new  Minister  of  Foreign  Relations.  If  he  met  with 
refusal,  he  was  to  return  home.  Slidell  applied;  and  he  was  not 
received,  because  the  United  States  maintained  a  threat  of 
force  by  land  and  sea;  because  the  United  States  had  annexed 
Texas;  and  because  a  minister  instead  of  a  "commissioner"  had 
been  sent;  and  because  the  President  of  the  United  States  had 
exceeded  his  constitutional  powers  in  accrediting  Slidell  as  a 
minister  without  having  the  appointment  ratified  by  the  Senate.3 
The  Mexicans  felt  encouraged  inasmuch  as  war  appeared  pro- 
bable between  the  United  States  and  Great  Britain  over  the 
Oregon  dispute.  Slidell  asked  for  his  passports  and  returned 
home. 

By  this  time  Polk  had  received  another  suggestion  that  might 
solve  the  Mexican  problem.  Colonel  Atocha  of  New  Orleans  had 
called  on  the  President  Friday,  February  13,  1846.  He  was  a 
Spaniard  by  birth;  he  had  lived  for  many  years  in  Mexico  and 
had  supported  the  sinister  Santa  Anna,  who  was  now  in  exile  at 
Havana.  Polk  confided  freely  to  his  diary  what  took  place  at 
this  interview.  Atocha  had  recently  come  from  Havana,  where 
he  had  seen  Santa  Anna,  who  was  in  constant  communication 
with  his  friends  in  Mexico.  The  revolution  by  Paredes  had  Santa 

1  Rives,  United  States  and  Mexico,  II.:  71. 
*H.  R.  Doc.  60,  30  Cong.,  i  sess.,  37. 
» Ibid.,  67. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          2OI 

Anna's  approval;  and  the  latter  had  strong  hopes  of  returning 
to  power.  Santa  Anna  favored  a  treaty  with  the  United 
States  with  the  Rio  Grande  as  the  boundary  for  Texas. 
He  favored  the  cession  to  the  United  States  of  the  territory  lying 
north  of  a  line  beginning  at  San  Francisco  Bay  and  running  due 
east  to  the  Colorado.  For  this  cession  the  United  States  should 
pay  $30,000,000.  This  sum  would  enable  Santa  Anna  to  place 
the  government  of  Mexico  on  a  firm  footing.  Santa  Anna  was 
surprised  that  General  Taylor's  army  was  kept  at  Corpus 
Christi  instead  of  on  the  Rio  Grande.  And  he  had  expressed 
the  opinion  that  the  United  States  "would  never  be  able  to 
treat  with  Mexico,  without  the  presence  of  an  imposing  force  by 
land  and  sea. "  1  General  Taylor  had  already  received  orders 
to  occupy  the  east  bank  of  the  Rio  Grande. 

Colonel  Atocha  called  again  the  following  Monday;  and  the 
President  made  another  entry.  He  repeated  Santa  Anna's 
assurances  about  a  treaty,  but  no  "administration  in  Mexico 
dared  to  make  such  a  proposition,  for  if  they  did  so  there  would 
be  another  revolution  by  which  they  would  be  overthrown. 
He  said  they  must  appear  to  be  forced  to  agree  to  such  a  proposi- 
tion. He  went  on  to  give  his  own  opinion  and,  as  he  said,  that 
of  General  Santa  Anna,  that  the  United  States  should  take  strong 
measures  before  any  settlement  could  be  effected.  He  said 
our  army  should  be  marched  at  once  from  Corpus  Christi  to  the 
Del  Norte,  and  a  strong  naval  force  assembled  at  Vera  Cruz, 
that  Mr.  Slidell,  the  U.  S.  Minister,  should  withdraw  from 
Jalappa,  and  go  on  board  one  of  our  ships  of  war  at  Vera  Cruz 
and  in  that  position  should  demand  the  payment  of  the  amount 
due  our  citizens;  that  it  was  well  known  the  Mexican  Govern- 
ment was  unable  to  pay  in  money,  and  that  when  they  saw  a 
strong  force  ready  to  strike  on  their  coasts  and  border,  they 
would,  he  had  no  doubt,  feel  their  danger  and  agree  to  the 
boundary  suggested.  He  said  that  Paredes,  Almonte,  and 
General  Santa  Anna  were  all  willing  for  such  an  arrangement, 
but  that  they  dare  not  make  it  until  it  was  made  apparent  to  the 
Archbishop  of  Mexico  and  the  people  generally  that  it  was 

,  Diary,  I.:  224. 


202  LEADING  AMERICAN  TREATIES 

necessary  to  save  their  country  from  a  war  with  the  United 
States."1 

On  the  day  after  each  of  these  interviews,  the  President 
held  a  cabinet  meeting.  At  the  first  he  proposed  to  send  a 
confidential  agent  to  Santa  Anna;  but  the  cabinet  did  not 
approve,  so  that  matter  was  dropped.  At  the  second  he  pro- 
posed sending  a  strong  message  to  Congress  asking  that  the 
President  be  given  authority  to  secure  a  redress  of  grievances 
"by  aggressive  measures."  l  Nothing  more  appears  to  have 
been  done  in  regard  to  Mexico  until  after  SlidelFs  return  to 
Washington,  May  8,  1846.  In  the  meantime,  the  Oregon 
dispute  had  been  as  good  as  settled. 

The  President  did  most  ardently  want  California  and  he  still 
thought  that  it  might  be  had  through  negotiation.  All  the 
information  at  hand  tended  to  show  that  the  region  was  vir- 
tually independent  of  Mexico.  The  Mexicans  there  had  gradu- 
ally become  degenerate.  They  made  no  new  settlements. 
They  robbed  the  missions.  Agriculture  withered  under  their 
ravages.  With  numerous  cattle  at  their  doors,  they  had 
neither  milk,  butter,  nor  cheese.  The  trade,  including  that 
in  hides,  was  in  the  hands  of  foreigners  like  Sutter;  so  was 
the  trapping  of  fur  bearing  animals.  The  Mexicans  made  no 
surveys  and  no  explorations.  No  one  knew  of  the  mineral 
resources  as  yet;  but  it  was  generally  known  that  California  was 
a  garden  spot,  splendidly  adapted  for  agriculture  and  grazing. 
The  Mexican  had  ceased  to  keep  step  with  the  progress  of  civili- 
zation. He  was  impotent  to  govern  the  territory.  And  it 
followed  as  a  consequence  that  he  could  not  long  retain  posses- 
sion. Efficient  colonists  percolated  into  the  region.  With  this 
movement  of  population  the  American  government  had  nothing 
to  do;  it  neither  encouraged  nor  discouraged.  However,  Ameri- 
cans had  made  emphatic  appeals  to  Polk's  administration  when 
their  property  had  been  destroyed  or  confiscated  and  their 
relatives  had  been  killed. 

Polk  did  not  have  great  confidence  in  Congress  on  the  Mexi- 

'Polk,  Diary,  I.:  228. 
'Ibid.,  I.:  233. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          203 

can  issue.  The  northeastern  states  could  not  look  with  favor 
upon  the  extension  of  what  they  believed  would  be  slave 
territory.  Their  representatives  in  Congress  had  barely  con- 
sented to  the  annexation  of  Texas.  The  northwest  could 
hardly  be  assumed  to  be  in  favor  of  an  aggressive  war.  And 
later  Lincoln's  spot  resolution  confirmed  that  assumption.  As 
a  Tennessean  Polk  knew  the  South  and  the  southwest. 
The  people  had  favored  the  annexation  of  Texas;  but  lead- 
ing southerners  knew  that  the  region  was  ill  adapted  to 
slavery.  Polk  had  even  kept  secret  the  orders  to  General 
Taylor  to  advance  to  the  Rio  Grande.  Moreover,  he  recognized 
that  the  right  of  the  United  States  to  the  strip  between  the 
Neuces  and  the  Rio  Grande  was  hi  question,  or  he  would  not 
have  consented  to  bargain  for  it  by  assuming  the  claims  of 
American  citizens  against  Mexico. 

In  Polk's  mind  the  actions  of  Mexico  left  no  recourse  but  war. 
And  war  he  had  decided  upon  even  before  he  heard  that  the 
Mexicans  had  crossed  the  Rio  Grande  to  attack  General  Taylor. 
At  the  cabinet  meeting  on  Saturday,  May  9,  1846,  Polk  stated 
that  he  had  no  new  advices  from  the  border,  but  he  could  not 
maintain  silence  much  longer.  He  expected  to  send  a  message 
to  Congress  the  following  Tuesday;  and  he  asked  the  members  of 
the  cabinet  if  he  should  recommend  a  declaration  of  war.  All 
replied  yes,  except  Bancroft,  who  explained  that  he  would  feel 
better  satisfied  if  the  Mexicans  committed  the  first  overt  act. 
Polk  decided  to  send  the  war  message  on  Tuesday.  But  on  the 
evening  of  the  same  day,  Polk  received  the  information  that 
hostilities  had  been  opened  by  the  Mexicans  under  General 
Arista.  This  satisfied  Bancroft's  scruples;  and  Polk  decided 
to  send  the  war  message  on  Monday.1  Polk  and  Bancroft  spent 
the  entire  day  of  Sunday,  May  10,  in  preparing  the  message. 
Polk  made  the  following  entry  in  his  diary:  "At  ioj^  o'clock  I 
retired  to  rest.  It  was  a  day  of  great  anxiety  to  me,  and  I  regret- 
ted the  necessity  which  had  existed,  to  make  it  necessary  for  me 
to  spend  the  Sabbath  in  the  manner  I  have.  "  2 


,  Diary,  I.:  384. 
Ibid.,  I.:  389. 


204  LEADING  AMERICAN  TREATIES 

Polk  did  not  recommend  to  Congress  that  war  be  declared. 
The  message  stated  that  "war  exists  by  the  act  of  Mexico."  He 
reviewed  the  treatment  by  Mexico  of  the  claims  of  American 
citizens,  the  double  refusal  to  receive  Slidell,  the  rights  of  Texas 
to  the  Rio  Grande  as  a  boundary,  the  warlike  proclamations  of 
the  Mexican  government,  and  the  destruction  of  commerce.  "  In 
the  meantime  we  have  tried  every  effort  at  reconciliation.  The 
cup  of  forbearance  had  been  exhausted  even  before  the  recent 
information  from  the  frontier  of  the  Del  Norte.  But  now,  after 
reiterated  menaces,  Mexico  has  passed  the  boundary  of  the 
United  States,  has  invaded  our  territory  and  shed  American 
blood  upon  American  soil.  She  has  proclaimed  that  hostilites 
have  commenced,  and  that  the  two  nations  are  now  at  war." 
And  he  recommended  that  Congress  make  liberal  provision  for 
raising  and  sustaining  adequate  military  forces.1 

Congress  supported  the  President  promptly.  News  arrived 
of  General  Taylor's  series  of  victories;  a  series  too  brilliant  for 
Folk's  approval,  for  he  did  not  intend  that  presidential  candi- 
dates should  be  made  in  Mexico.  Fremont  and  Kearny  took 
gradually  possession  of  the  then  almost  isolated  region  of  Cali- 
fornia. After  some  doubts  and  misgivings,  covering  six  months, 
Polk  ordered  General  Scott  to  command  the  expedition  to 
Vera  Cruz.  But  the  move  that  the  President  expected  most 
from  was  based  on  the  information  received  from  Colonel 
Atocha.  He  thought  correctly  that  Santa  Anna  would  have 
considerable  influence  in  Mexico,  but  incorrectly  that  Santa 
Anna  would  live  up  to  his  implied  promises.  Secretary  of  the 
Navy  Bancroft  sent  a  confidential  message  to  Commodore 
Conner,  who  commanded  the  naval  forces  before  Vera  Cruz: 
"If  Santa  Anna  endeavors  to  enter  the  Mexican  ports,  you  will 
allow  him  to  pass  freely.  "2 

So  much  significance  did  Polk  attach  to  Santa  Anna  that  he 
designated  a  special  agent  to  confer  with  the  fugitive  at  Havana. 
This  agent  was  Commander  Alexander  Slidell  Mackenzie,  a 
nephew  of  John  Slidell.  Mackenzie  reached  Havana  on  July 

1  Richardson,  Messages,  etc.,  IV.:  437. 

'Reeves,  American  Diplomacy  under  Tyler  and  Polk:  298. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          205 

5,  1846,  and,  two  days  later,  had  a  long  interview  with  Santa 
Anna.  He  informed  Santa  Anna  that  the  United  States  naval 
vessels  off  Mexico  would  permit  him  to  return,  that  the  President 
wanted  the  government  of  Paredes  overthrown,  that  the  United 
States  would  agree  to  no  armistice  with  Paredes,  and  that  as 
soon  as  Santa  Anna  should  return  to  power  and  announce  his 
readiness  to  treat,  the  President  would  agree  to  a  suspension 
of  hostilities  by  land  but  the  blockade  would  be  maintained. 
American  claims  being  recognized,  the  President  would  ask  for 
no  indemnity,  and  he  would  pay  liberally  for  the  cession  of 
northern  Mexico. 

Santa  Anna  expressed  gratitude  for  the  order  to  Commander 
Conner  to  let  him  pass,  and  drafted  a  note,  which  he  asked 
Mackenzie  to  copy.  In  this  note  Santa  Anna  enjoined  the 
greatest  secrecy  and  promised  that  being  restored  to  his  country 
he  would  enter  into  negotiations  and  agree  to  such  a  peace  as 
had  been  described.  He  preferred  a  friendly  arrangement  to  the 
ravages  of  war.  To  attain  this  object  he  considered  it  necessary 
that  General  Taylor  should  advance  to  the  city  of  Saltillo;  thus 
compelling  Paredes  to  fight  or  withdraw.  Taylor  could  then 
advance  to  San  Luis  Potosi  which  would  compel  Mexicans  of  all 
parties  to  recall  Santa  Anna.1 

On  Sunday  morning,  August  16,  1846,  the  British  war  vessel, 
"Arab,"  passed  by  the  American  vessels  off  Vera  Cruz  into  the 
port.  The  senior  British  officer  had  informed  Commodore 
Conner  that  the  vessel  carried  no  cargo  and  if  permitted  to  go 
into  port  would  take  none  on  her  return.  "I  could  easily  have 
boarded  the  Arab,"  Conner  reported  to  Bancroft,  "but  I 
deemed  it  most  proper  not  to  do  so,  allowing  it  to  appear  as  if  he 
had  entered  without  my  concurrence. " :J  Santa  Anna  had  landed 
at  Vera  Cruz,  and  he  proceeded  to  the  capital  in  triumph. 

Hardly  had  Santa  Anna  reached  the  city  of  Mexico  before 
a  note  from  Buchanan  arrived,  dated  July  27,  1846,  offering  to 
send  a  minister  with  full  power  to  conclude  a  treaty  of  peace. 
The  offer  was  rejected.  Santa  Anna  as  "general-in-chief  of 

beeves,  American  Diplomacy  under  Tyler  and  Polk:  299. 
2H.  R.  Doc.  60,  30  Cong.,  i  sess.,  776. 


200  LEADING  AMERICAN  TREATIES 

the  liberating  army"  was  not  the  same  as  Santa  Anna  in 
exile. 

In  January,  1847,  Polk  made  another  effort  to  open  negotia- 
tions. This  time  he  sent  the  renowned  Colonel  Atocha  himself. 
But  the  Mexicans  spurned  the  overtures.  Folk's  disappoint- 
ment was  tempered  by  the  news  of  Taylor's  victory  over  Santa 
Anna's  forces  at  Buena  Vista  and  of  the  surrender  of  Vera  Cruz 
to  Scott.  Again  the  subject  of  peace  negotiations  came  before  a 
cabinet  meeting  on  April  10,  1847.  Polk  recorded  in  his  diary 
that  he  had  emphasized  the  need  of  having  a  commissioner  with 
full  powers,  "who  should  attend  the  head-quarters  of  the  army 
ready  to  take  advantage  of  the  circumstances  as  they  might 
arise  to  negotiate  for  peace. "  All  the  members  of  the  cabinet 
had  concurred  in  his  opinion.  But  his  embarrassment  consisted 
in  the  selection  of  a  suitable  commissioner.  Thomas  H.  Benton 
had  asked  for  the  position  with  the  proviso  that  he  be  given  chief 
command  of  the  army  as  well.1  The  diary  states:  "Such  is  the 
jealousy  of  the  different  factions  of  the  Democratic  party  in 
reference  to  the  next  Presidential  Election  towards  each  other 
that  it  is  impossible  to  appoint  any  prominent  man  or  men 
without  giving  extensive  dissatisfaction  to  others,  and  thus 
jeopardizing  the  ratification  of  any  Treaty  they  might  make. 
In  this  also  the  Cabinet  were  agreed. "  2  Polk  had  stated  that  he 
preferred  Buchanan,  but  he  could  not  be  spared  for  an  indefinite 
period.  Buchanan  concurred  in  this  view  and  had  suggested  the 
chief  clerk  of  the  State  Department,  Nicholas  P.  Trist.  After 
much  conversation  the  cabinet  unanimously  agreed  that  it 
would  be  proper  to  send  Trist  with  a  project  of  a  treaty  drawn  by 
Buchanan  and  approved  by  the  cabinet. 

In  a  week  the  cabinet  had  before  it  the  project  of  a  treaty. 
This  provided  that  the  boundary  should  "commence  in  the  Gulf 
of  Mexico,  three  leagues  from  the  land  opposite  the  mouth  of  the 
Rio  Grande."  Nothing  in  the  correspondence  indicates  why 
the  nine  instead  of  the  three  mile  limit  was  inserted  in  the  project 
and  finally  accepted  in  the  treaty.  The  boundary  should  follow 

'Polk,  Diary,  IT.:  352. 
'Ibid.,  II.:  466. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          207 

the  Rio  Grande  to  the  point  where  it  strikes  the  southern  line  of 
New  Mexico;  thence  west  in  such  a  manner  as  to  convey  to  the 
United  States  all  of  New  Mexico  and  Upper  and  Lower  Cali- 
fornia. In  consideration  of  this  extension  of  boundary  the 
United  States  agreed  to  pay  $15,000,000  in  five  equal  annual  in- 
stallments, the  first  one  to  be  paid  immediately  after  the  treaty 
had  been  ratified  by  Mexico.  And  the  United  States  agreed  to 
assume  the  just  claims  of  American  citizens  up  to  $3,000,000. 
Mexico  should  agree  to  grant  and  guarantee  forever  to  the 
government  and  citizens  of  the  United  States  the  right  of  trans- 
port across  the  isthmus  of  Tehuantepec.  Mexico  should  not 
confiscate  or  impose  any  additional  duty  upon  goods  imported 
through  ports  that  had  been  under  American  occupation.  The 
Treaty  of  Commerce  of  1831  was  to  be  revived  for  eight  years.1 
In  the  accompanying  instructions  Trist  was  directed  to  com- 
municate a  copy  of  the  project  and  of  the  instructions  to  General 
Scott.  If  it  should  appear  necessary  during  the  negotiations  with 
the  Mexican  plenipotentiary  Trist  might  offer  as  high  as 
$30,000,000  for  Upper  and  Lower  California,  New  Mexico, 
and  the  right  of  transit  across  Tehuantepec.  The  sine  qua  non 
of  any  treaty  consisted  in  "the  extension  of  our  boundaries  over 
New  Mexico  and  Upper  California,  for  a  sum  not  exceeding 
twenty  millions  of  dollars. "  Should  the  Mexican  agent  insist 
that  some  provision  be  inserted  in  the  treaty  assuring  the  rights 
of  persons  and  property  in  the  ceded  territory,  then  Trist 
might  consent  to  the  insertion  of  the  substance  of  the  third 
article  of  the  Louisiana  Treaty.  This  provided  for  incorpora- 
tion in  the  United  States  and  admission  to  citizenship  of  the 
inhabitants  as  soon  as  the  principles  of  the  constitution  would 
permit.  In  the  meantime  there  should  be  free  enjoyment  of 
property  and  of  religious  worship.  But  all  titles  to  land  issued 
by  Mexico  since  May  13, 1846,  should  be  null  and  void.  As  soon 
as  the  treaty  should  be  signed  and  ratified  by  Mexico  Trist  was 
empowered  to  communicate  that  fact  to  the  American  military 
and  naval  commanders,  who  had  received  orders  from  the  Secre- 
tary of  War  and  Secretary  of  the  Navy  to  suspend  hostilities 
1Sen.  Doc.  52,  30  Cong.,  i  sess.,  85. 


208  LEADING  AMERICAN  TREATIES 

upon  receipt  of  such  notice.  In  other  words,  the  chief  clerk  of 
the  State  Department  was  given  large  discretionary  power  as 
to  when  hostilities  should  cease.  Trist  was  equipped  with  a 
draft  for  $3,000,000  in  favor  of  Mexico;  and  he  was  enjoined  to 
use  every  precaution  that  the  draft  be  made  out  to  the  proper 
Mexican  functionaries.1 

Nicholas  P.  Trist  was  a  Virginian.  He  had  entered  West 
Point,  but  resigned  before  graduation  in  order  to  study  law. 
He  married  Jefferson's  granddaughter.  He  served  successively 
as  a  clerk  in  the  Treasury,  as  private  secretary  to  President 
Jackson,  and  as  consul  in  Havana.  He  knew  Spanish.  And  he 
was  a  mature  man,  forty-seven  years  of  age.  His  record  and 
his  character  indicated  that  he  possessed  excellent  qualifications 
for  the  mission. 

The  cabinet  approved  the  project,  the  instructions,  the  full 
power,  and  the  orders  to  General  Scott  and  Commodore  Perry 
on  April  15,  1847.  The  next  day,  Trist  started  on  his  mission. 
He  reached  Vera  Cruz  on  May  6;  and  he  wrote  a  letter  informing 
Scott  of  his  presence,  inclosed  the  order  from  the  Secretary  of 
War  and  a  letter  addressed  by  Buchanan  to  the  Mexican  Min- 
ister of  Foreign  Relations  to  be  forwarded  by  a  flag  of  truce. 
But  Trist  failed  to  inform  Scott  of  the  real  object  of  his  mission. 
Two  sentences  from  Secretary  of  War  Marcy's  order  will  show 
why  the  proud  and  suspicious  nature  of  General  Scott  should  be 
set  on  fire.  "Mr.  Trist  is  clothed  with  such  diplomatic  powers 
as  will  authorize  him  to  enter  into  arrangements  with  the  govern- 
ment of  Mexico  for  the  suspension  of  hostilities.  Should  he 
make  known  to  you  in  writing  that  the  contingency  has  occurred, 
in  consequence  of  which  the  President  is  willing  that  further 
active  military  operations  should  cease,  you  will  regard  such 
notice  as  a  direction  from  the  President  to  suspend  them  until 
further  orders  .  .  . "  2 

General  Scott  had  his  worries  about  means  of  transport 
and  supply.  He  knew  that  he  did  not  possess  the  confidence 
of  the  administration  and  he  was  continually  looking  for  signs 

1  Sen.  Doc.  52,  30  Cong.,  i  seas.,  81. 
*H.  R.  Doc.  60,  30  Cong.,  i  sess.,  940. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          209 

of  distrust.  Circumstances  excused  what  would  have  otherwise 
constituted  a  puerile  reply  to  Trist.  He  refused  to  forward 
the  sealed  note  from  Secretary  Buchanan  to  the  Mexican 
Minister  of  Foreign  Relations.  Said  he:  "I  see  that  the  Secre- 
tary of  War  proposes  to  degrade  me,  by  requiring  that  I,  the 
commander  of  this  army,  shall  defer  to  you,  the  chief  clerk  of  the 
Department  of  State,  the  question  of  continuing  or  discontinuing 
hostilities. "  He  assured  Trist  that  the  question  of  an  armistice 
was  a  military  question  merely.  Unless  Trist  possessed  military 
rank  above  him,  all  overtures  for  an  armistice  would  have  to  be 
made  through  Scott.1 

Trist  wrote  a  rejoinder  of  thirty  pages  with  innuendos  on 
"wanton  contempt  of  orders"  and  "contumacy  sought  to  be 
covered  up. "  He  explained  for  the  first  time  to  Scott  that  the 
suspension  of  hostilities  should  occur  only  after  Mexico  had 
ratified  the  treaty,  which  was  "what  any  man  of  plain,  unso- 
phisticated common  sense  would  take  for  granted  that  it  must  be; 
and  it  is  not  what  your  exuberant  fancy  and  overcultivated 
imagination  would  make."  Scott  never  opened  or  read  this 
communication  himself,  but  ordered  a  subordinate  to  open  and 
read  it  to  him  in  the  presence  of  several  staff  officers.  "  My  first 
impulse,"  wrote  Scott,  "was  to  return  the  farrago  of  insolence, 
conceit,  and  arrogance  to  the  author,  but,  on  reflection,  I  have 
determined  to  preserve  the  letters  as  a  choice  specimen  of 
diplomatic  literature  and  manners. "  3  The  whole  correspond- 
ence was  submitted  by  Secretaries  Marcy  and  Buchanan  to 
Polk  who  advised  them  to  caution  Scott  and  Trist  on  endanger- 
ing public  interests  in  the  enemy's  country  by  "a  violent  and 
embittered  personal  quarrel. "  4 

In  order  to  convey  the  note  from  Buchanan  to  the  Minister 
of  Foreign  Relations  Trist  managed  to  communicate  with 
the  British  legation.  The  British  minister,  Bankhead,  sent 
out  a  fine  young  gentleman,  Edward  Thornton,  to  confer 
with  Trist.  Thornton  took  back  with  him  much  gossipy  news 

1 H.  R.  Doc.  60,  30  Cong.,  i  sess.,  814. 
2  Ibid.,  818,  816. 
8  Ibid.,  996. 
4  Ibid.,  975. 


210  LEADING  AMERICAN  TREATIES 

and  also  Buchanan's  despatch,  which  was  duly  delivered  to 
Ibarra,  the  Minister  of  Foreign  Relations.  Santa  Anna  ex- 
pressed to  Thornton  a  desire  for  an  arrangement  of  difficulties 
with  the  United  States,  and  Ibarra  transmitted  a  very  courteous 
letter  through  his  hands  for  Secretary  Buchanan.  Thornton 
visited  the  American  camp  at  Puebla  again  on  June  24,  1847, 
delivered  the  letter,  mentioned  that  the  Mexican  Congress 
sat  in  special  session"  to  consider  negotiations  for  peace;  and  he 
was  no  doubt  instrumental  in  reconciling  Scott  and  Trist. 

Purported  agents  from  Santa  Anna  appeared  in  the  American 
camp  and  stated  that  if  their  chief  were  paid  $10,000  immedi- 
ately to  be  used  in  overcoming  resistance  in  the  Mexican  Con- 
gress, the  peace  commissioners  would  be  named.  The  agents 
represented  also  that  it  would  be  well  to  make  a  secret  payment 
of  $1,000,000,  which  would  not  be  mentioned  in  the  treaty. 
These  suggestions  appealed  to  Scott  and  Trist.  They  consulted 
several  officers.  General  Pillow,  a  personal  friend  of  Polk, 
favored  the  bribe.  General  Twiggs  approved.  Generals  Quit- 
man  and  Shields  dissented ;  and  Cadwalader  said  nothing.  There- 
upon, Scott  paid  over  the  stipulated  $10,000  from  the  secret 
service  fund  which  was  at  his  disposal.  Whereupon,  Santa 
Anna  hesitated  to  carry  out  his  part  of  the  understanding  and 
advised  that  the  American  army  should  take  a  position  near 
the  city  of  Mexico.1 

Scott  advanced  slowly  but  surely.  He  won  the  victories  of 
Contreras  and  Churubusco  in  the  latter  part  of  August,  1847. 
Santa  Anna  fled  to  Mexico  City  and  forthwith  asked  the  British 
legation  to  prepare  the  way  for  peace.  Bankhead  wrote  two 
notes  to  Trist  assuring  him  that  the  Mexicans  earnestly  desired 
peace.  The  Minister  of  Foreign  Relations,  Pacheco,  wrote 
another  expressing  a  desire  to  listen  to  and  discuss  whatever 
propositions  the  United  States  had  to  offer.  In  form  this  note 
was  a  reply  to  Buchanan's  note  of  April  15,  for  the  Mexican 
officials  did  not  want  to  appear  to  be  initiating  the  negotiations.2 

1  Buchanan,  Works,  VTI.:  484;  Polk,  Diary,  III:  245,  251,  261,  341,  384, 
388;  Hitchcock,  E.  A.,  Fifty  Years  in  Camp  and  Field:  267. 
*Sen.  Doc  52,  30  Cong.,  i  sess.,  189. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          211 

The  three  notes  were  entrusted  to  General  Mora  y  Villamil  who 
found  Scott  at  the  village  of  Coyoacan. 

Scott  had  now  complied  with  Santa  Anna's  previous  sugges- 
tion of  defeating  the  Mexican  army  and  of  occupying  a  position 
within  sight  of  the  capital.  The  notes  from  Bankhead  and  a 
visit  from  Thornton  convinced  him  that  the  Mexicans  desired 
peace.  Moreover,  Scott  was  himself  actuated  with  a  desire 
to  end  the  war.  Disease  and  guerrilla  warfare  diminished  the 
fighting  strength  of  the  army  and  caused  much  worry.  Mora 
proposed  a  truce  on  his  own  authority  with  nothing  in  writing 
from  Santa  Anna  to  support  the  proposal.  Scott  refused;  but 
he  wrote  a  note  to  Santa  Anna,  stating  that "  too  much  blood  had 
already  been  shed  in  this  unnatural  war;"  that  the  United 
States  had  a  peace  commissioner  with  the  army;  and  that  "In 
order  to  open  the  way  for  the  two  republics  to  enter  into  negotia- 
tions, I  desire  to  execute,  on  reasonable  terms,  a  short  armis- 
tice."1 

This  apparently  spontaneous  request  for  an  armistice  by 
Scott  appears  to  have  been  exactly  what  the  adroit  Santa  Anna 
wanted.  He  replied  through  his  Minister  of  War,  Alcorta: 
"It  is  certainly  lamentable  that  an  inconsiderate  regard  for 
the  rights  of  the  Mexican  republic  has  led  to  the  shedding  of 
blood  by  the  two  first  republics  of  this  American  continent, 
and  with  great  exactness  Your  Excellency  has  characterized 
this  war  as  unnatural — not  alone  for  its  motives,  but  likewise 
on  account  of  its  being  produced  by  two  nations  whose  interests 
and  relations  are  identified  with  each  other.  The  proposition 
of  an  armistice  to  terminate  this  scandal  has  been  acceded  to 
with  pleasure  by  His  Excellency,  the  President  and  General  in 
Chief,  because  it  will  open  a  way  through  which  the  propositions 
of  the  commissioner  of  the  President  of  the  United  States  of 
America  for  the  decorous  termination  of  this  war  may  be  listened 
to. "  Two  Mexican  generals  had  been  nominated  to  agree  on  the 
terms  of  an  armistice.  And  the  President-General  had  expressed 
"his  willingness  that  the  army  of  the  United  States  shall  take 
commodious  and  furnished  quarters,  hoping  they  will  be  found 
1  Sen.  Doc.  52,  30  Cong.,  i  sess.,  308. 


212  LEADING  AMERICAN  TREATIES 

without  the  range  of  shot  from  the  Mexican  fortifications. "  l 
This  reply  appeared  conspicuously  in  the  Mexican  news- 
papers. 

The  armistice  was  agreed  to  on  August  24,  1847.  It  was  to 
continue  during  the  period  of  the  negotiations  or  until  forty- 
eight  hours'  notice  had  been  given  by  either  party.  Scott  did 
not  require  a  single  material  guarantee.  He  and  Trist  believed 
fully  in  the  sincerity  of  Santa  Anna  and  felt  confident  of  success. 
Trist  wrote  the  Minister  of  Foreign  Relations  to  name  time  and 
place  of  meeting.  Pacheco  replied  that  the  commissioners 
had  not  yet  been  chosen.  Santa  Anna  and  Congress  were  en- 
deavoring to  shove  the  responsibility  for  the  negotiations  on  the 
other.  Congress  could  not  summon  even  a  quorum.  Santa  Anna 
appointed  the  commissioners,  who  declined  promptly.  Finally 
he  persuaded  four  prominent  Mexicans  to  accept,  among  them 
ex-President  Herrera.  But  he  did  not  confer  upon  them  full 
power;  they  could  merely  accept  and  transmit  the  American 
proposals.  Trist  pointed  out  this  defect  and  at  the  same  time 
delivered  to  them  the  project  of  the  treaty.2 

In  reply  Pacheco  instructed  the  Mexican  commissioners  to 
insist  upon  the  Neuces  River  as  the  boundary,  the  release  of 
Mexico  from  all  claims,  and  an  indemnity  for  the  loss  of  Texas. 
The  United  States  should  pay  the  expenses  of  the  war  and  with- 
draw the  American  troops  as  soon  as  the  treaty  was  signed.3 
The  commissioners  found  these  terms  so  impossible  that  they 
offered  their  resignation  immediately.  But  Santa  Anna  had  not 
yet  reaped  the  full  benefit  of  the  armistice,  and  directed  Pacheco 
to  inform  the  commissioners  that  the  instructions  should  be 
followed  as  far  as  possible.  They  succeeded  marvelously.  Trist 
gave  up  Lower  California,  the  right  of  transit  across  Tehuante- 
pec ;  he  offered  to  submit  the  question  of  the  Neuces  to  Washing- 
ton; and  he  promised  to  propose  to  Scott  a  continuance  of  the 
armistice  until  a  reply  should  be  received.4  But  Trist  was  saved 
the  trouble  of  waiting  for  a  reply  from  Buchanan  for  Santa  Anna 

1  Sen.  Doc.  52,  30  Cong.,  i  sess.,  308,  350. 
*Ibid.,  191. 
» Ibid.,  369. 
4  Ibid.,  195. 


213 

rejected  the  terms.  And  on  September  6,  the  Mexicans  handed 
Trist  a  counter  project  of  a  treaty,  in  which  New  Mexico  was 
retained  and  likewise  California  as  far  north  as  latitude  thirty- 
seven,  or  up  to  San  Francisco.  The  project  proposed  also  that 
Great  Britain  should  guarantee  the  observance  of  the  treaty.1 
Under  his  instructions,  Trist  could  not  accept  these  terms, 
and  he  declared  the  negotiations  at  an  end.  Thereupon,  Scott 
gave  notice  of  the  termination  of  the  armistice  not  because  the 
negotiations  had  failed,  but  on  the  ground  that  new  fortifica- 
tions had  been  erected.2  And  Santa  Anna  resumed  his  fusillade 
of  belligerent  proclamations  and  heinous  charges  against  the 
American  troops.  Grant  states  in  his  "  Memoirs  "  that  the 
Mexican  officers  "simply  quit,  without  being  particularly 
whipped,  but  because  they  had  fought  enough. "  Scott  began 
to  evolve  his  plan  for  capturing  Chapultepec  and  Mexico  City. 

The  news  of  the  armistice  reached  Washington  in  the  middle 
of  September.  Polk  registered  a  fear  in  his  diary  that  Santa 
Anna  needed  time  to  reorganize  his  defeated  army.3  Not  until 
the  first  week  in  October  did  the  news  of  the  termination  of 
the  armistice  and  the  diplomatic  correspondence  reach  the 
President.  He  directed  that  Scott  should  levy  contributions 
on  the  enemy  and  that  Trist  be  recalled,  because  his  remaining 
longer  might  create  the  impression  in  Mexico  that  the  United 
States  would  accept  Santa  Anna's  terms.  "Mexico  must  now 
sue  for  peace"  wrote  Polk.4  Trist's  recall  bore  the  date  of  Octo- 
ber 6,  1847;  and  it  reached  him  on  November  16. 

By  the  latter  date  numerous  events  had  occurred  in  Mexico. 
Scott  had  taken  possession  of  Mexico  City  on  September  14. 
Santa  Anna  had  resigned  the  presidency  and  on  October  7, 
turned  over  the  command  of  the  army  to  General  Reyes;  and 
thereafter  spent  several  months  as  a  fugitive  until  on  April  5, 
1848,  he  departed  from  Mexico  under  an  American  safe  conduct 
for  Jamaica.  The  American  squadron  under  Commodore  Perry 
continued  to  maintain  a  blockade  of  all  the  Gulf  ports.  The 

1  Sen.  Doc.  52,  30  Cong.,  i  sess. ,  378. 

2  Ibid.,  346. 

3  Polk,  Diary,  III.:   172. 

4  Ibid.,  III.:  186. 


214  LEADING  AMERICAN  TREATIES 

presidency  had  temporarily  devolved  upon  Manuel  de  la  Pena  y 
Pena,  the  presiding  judge  of  the  Supreme  Court,  who  had  always 
favored  a  straightforward  settlement  of  disputes  with  the 
United  States.  He  appointed  as  Minister  of  Foreign  Relations, 
Luis  de  la  Rosa,  a  well  known  advocate  of  peace.  The  capital 
had  been  moved  to  Queretaro  where  Congress  was  to  assemble; 
and  a  quorum  of  that  body  appeared  on  November  2.  Trist 
had  grown  impatient  with  his  enforced  idleness  and  with  the 
volatile  condition  of  Mexican  politics.  On  October  2,  he  sent 
a  note  through  the  British  legation  to  Rosa. 

This  note  contained  no  offer  to  reopen  negotiations  but  it 
presented  the  American  argument  for  the  Rio  Grande  as  the 
boundary  in  reply  to  the  former  Mexican  claim  of  the  Neuces.1 
Rosa  wrote  a  brief  and  direct  reply  to  the  effect  that  commis- 
sioners would  be  appointed  in  a  few  days  to  continue  the  negoti- 
ations.1 

When  Congress  mustered  a  quorum,  it  proceeded  to  elect 
General  Anaya  as  President  ad  interim,  and  he  appointed  Pena 
y  Pena  as  Minister  of  Foreign  Relations.  On  November  22,  the 
latter  sent  a  note  to  Trist  through  the  British  legation,  announc- 
ing that  the  President  had  appointed  commissioners.  And 
this  was  done  in  spite  of  the  fact  that  the  Minister  of  Foreign 
Relations  had  been  informed  through  Thornton  of  Trist's  recall. 
Pena  y  Pena  wrote  a  private  letter  to  Trist  imploring  him  to 
remain  and  to  take  into  consideration  the  difficulties  of  the 
Mexican  government.  He  reminded  Trist  that  he  had  reopened 
negotiations  under  full  powers  and  that  it  was  now  too  late  to 
withdraw.  Moreover,  Scott  urged  Trist  to  stay  and  finish  the 
work  he  had  begun.  On  November  27  he  was  apparently  still 
firm  in  his  decision  to  heed  the  recall,  and  so  wrote  to  Buchanan. 
He  stated:  "The  only  possible  way  in  which  a  treaty  can  be  made 
is,  to  have  the  work  done  on  the  spot — negotiation  and  ratifica- 
tion to  take  place  at  one  dash. "  3  But  every  attention  and 
flattery  which  the  Latin  mind  could  devise  was  showered  upon 

1  Sen.  Doc.  52,  30  Cong.,  i  seas.,  214. 
•Ibid,  227. 
•Ibid.,  228. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          215 

him.  And  Scott  was  confident  that  any  treaty  which  he  might 
negotiate  would  be  ratified  in  Washington.  By  December  3, 
Trist  yielded;  and  he  gave  the  Mexican  commissioners  to  under- 
stand that  he  would  assume  responsibility  for  a  treaty,  which 
he  could  take  with  him  to  Washington. 

Having  obtained  their  immediate  object  in  this  decision  of 
Trist,  the  Mexicans  proceeded  to  dally  again.  Their  com- 
missioners had  not  been  confirmed  by  the  Senate,  which  was  a 
pretext  for  compelling  that  body  to  share  in  the  responsibility 
for  the  inevitably  unpopular  treaty.  Three  weeks  were  thus 
consumed.  Finally,  under  pressure  from  the  British  legation, 
Pena  y  Pena  yielded  and  instructed  the  commissioners  to  go  on 
with  the  negotiations,  December  30,  1847. 

Thereupon,  the  serious  negotiations  began  in  Mexico  City. 
Trist  immediately  laid  down  as  a  sine  qua  non  the  Rio  Grande 
as  the  boundary  and  the  inclusion  of  San  Diego  in  the  cession 
to  the  United  States.  He  stated  also  that  he  would  not  consent 
to  pay  more  than  $15,000,000.  The  Mexicans  objected  to  the 
boundary  and  asked  for  $30,000,000.  Trist  possessed  a  decided 
advantage  in  having  Scott's  efficient  army  near,  also  in  the  fact 
that  he  was  acting  in  defiance  of  orders  and  could  drop  negotia- 
tions at  any  time.  The  disputes  that  appear  to  have  consumed 
the  most  time  concerned  the  form  of  phraseology  rather  than  the 
substance  of  the  meaning.  By  January  25, 1848,  the  treaty  was 
complete,  except  for  the  signatures.  The  Minister  of  Foreign 
Relations  authorized  the  signature  on  condition  that  Lower 
California  be  connected  by  land  with  Sonora  and  that  no  part  of 
Sonora  or  Chihuahua  be  included  in  the  cession.  Trist  and  the 
Mexican  commissioners  were  able  to  reassure  him  on  that  score. 
His  next  move  was  to  ask  for  immediate  cash.  Trist  threatened 
to  break  off  negotiations;  and  Scott  announced  his  intention  to 
march  to  Queretaro.  The  British  legation  assisted  with  its 
influence.  Finally,  the  government  yielded;  and  the  treaty  was 
signed,  February  2, 1848,  not  at  Mexico  City,  but  at  the  neighbor- 
ing town  of  Guadalupe  Hidalgo,  which  held  the  shrine  of  a  virgin 
greatly  worshipped  by  the  Mexicans.  During  this  week  gold  had 
been  discovered  in  California  near  Sutler's  mill.  Fortunately, 


2l6  LEADING  AMERICAN  TREATIES 

there  were  no  telegraphic  connections  or  further  delays  might 
have  resulted. 

In  the  meantime,  the  news  had  arrived  in  Washington  that 
Scott  and  Trist  had  at  one  time  thought  of  paying  Santa  Anna 
a  million  dollars  as  a  bribe.  Various  generals  in  Scott's  army 
published  letters  claiming  undue  credit  for  themselves.  The 
President  believed  these  jealousies  had  been  produced  by  "  the 
vanity  and  tyrannical  temper  of  General  Scott,  and  his  want 
of  prudence  and  common  sense."  He  ordered  that  General 
William  O.  Butler  should  take  command  of  the  army  and  that 
Scott  should  appear  before  a  court  of  inquiry  to  sit  hi  Mexico. 
Trist's  determination  to  disregard  the  order  of  recall  from  the 
Secretary  of  State  appeared  to  Polk  most  surprising.  He  wrote 
in  his  diary,  "I  directed  the  Secretary  of  War  to  write  at  once  to 
Major  General  Butler,  directing  him,  if  Mr.  Trist  was  still  with 
the  Head  Quarters  of  the  army,  to  order  him  off,  and  to  inform 
the  authorities  of  Mexico  that  he  had  no  authority  to  treat.  If 
there  was  any  legal  provision  for  his  punishment  he  ought  to  be 
severely  handled.  He  has  acted  worse  than  any  man  in  the  public 
employ  whom  I  have  ever  known. "  2  Before  this  order  could  be 
delivered  to  Butler  Trist  had  started  home. 

A  despatch  bearer  arrived  with  the  treaty  on  the  evening 
of  Saturday,  February  19,  1848.  The  President  spent  the 
Sabbath  with  members  of  the  cabinet  examining  the  secular 
document.  It  opened  significantly  with  the  words,  "In  the 
name  of  Almighty  God:"  Article  I  provided  for  a  "firm  and 
universal  peace."  Article  II  provided  for  the  appointment 
of  commissioners  to  agree  upon  a  truce  as  soon  as  the  treaty  was 
signed.  Article  III:  Upon  the  exchange  of  ratifications,  the 
United  States  should  order  the  lifting  of  the  blockade  and 
should  at  the  earliest  moment  practicable  withdraw  the  troops 
to  within  thirty  leagues  of  the  coast.  The  customs  houses 
should  be  delivered  to  the  Mexican  authorities  together  with  all 
bonds  and  evidences  of  debt  for  duties.  All  duties  collected 
after  the  ratification  by  Mexico  should  be  delivered  minus  the 

'Polk,  Diary,  III.:  266. 
'Ibid,  III.:  301. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          217 

cost  of  collection.  Article  IV:  The  evacuation  of  Mexican  terri- 
tory should  be  completed  within  three  months  of  the  exchange 
of  ratifications.  The  mutual  restoration  of  prisoners  of  war; 
and  the  restoration  by  the  United  States  to  Mexico  of  all  forts, 
apparatus  of  war  therein,  and  of  public  property  was  provided 
for.  Article  V :  The  boundary  began  in  the  Gulf  of  Mexico, ' '  three 
leagues  from  land,"  opposite  the  mouth  of  the  Rio  Grande; 
thence  up  the  middle  of  that  river,  following  the  deepest  channel, 
to  the  point  where  it  struck  the  southern  boundary  of  New  Mex- 
ico; thence  along  the  southern  and  western  boundary  of  New 
Mexico,  according  to  Disturnell's  map,  published  in  New  York, 
1847,  until  it  intersected  the  first  branch  of  the  Gila  River; 
thence  down  the  middle  of  that  stream  to  its  juncture  with 
the  Colorado;  thence  across  the  Colorado,  following  the  bound- 
ary between  Upper  and  Lower  California  to  the  Pacific.  Except 
for  the  change  made  by  the  Gadsden  Purchase,  this  line  remains 
the  boundary  today.  Article  VI  provided  for  the  free  navigation 
of  the  Gulf  of  Lower  California,  the  Colorado,  and  the  Gila 
to  the  vessels  and  citizens  of  the  United  States.  And  Article 
VII  provided  for  the  reciprocal  free  navigation  of  the  Rio  Grande. 

Article  VIII  allowed  the  Mexicans  in  the  ceded  territory 
one  year  in  which  to  elect  to  remain  Mexican  citizens  or  become 
Americans.  If  they  had  made  no  choice  by  the  end  of  the  year 
they  should  be  considered  Americans.  The  property  of  all  was 
to  be  fully  respected.  Article  IX:  Those  Mexicans  who  should 
become  Americans  were  to  "be  admitted  at  the  proper  time 
(to  be  judged  of  by  the  Congress  of  the  United  States)  to  the 
enjoyment  of  all  the  rights  of  citizens  of  the  United  States, 
according  to  the  principles  of  the  constitution. "  In  the  mean- 
time they  were  to  enjoy  freely  their  liberty,  property,  and  the 
exercise  of  their  religion.  This  was  the  substance  of  Article  III 
of  the  Louisiana  Purchase  Treaty.  Trist  had  amplified  it,  but 
the  amplifying  words  were  eliminated  by  the  American  Senate. 

In  Article  X  Trist  went  beyond  his  instructions.  Mexico 
declared  therein  that  she  had  made  no  land  grants  in  Texas 
since  March  2,  1836,  nor  in  New  Mexico  and  California  since 
May  13,  1846.  But  she  stipulated  that  previous  grants  in 


2l8  LEADING  AMERICAN  TREATIES 

the  above  mentioned  regions,  on  which  the  grantees  had  not 
complied  with  all  the  conditions,  should  revive  as  of  the  date  of 
the  exchange  of  ratifications  of  the  treaty.1  The  President  and 
his  cabinet  reached  the  conclusion  that  he  should  recommend  to 
the  Senate  that  this  article  be  stricken  from  the  treaty.  He  gave 
as  his  reason:  "The  public  lands  within  the  limits  of  Texas 
belong  to  that  State,  and  this  Government  has  no  power  to 
dispose  of  them  or  to  change  the  conditions  of  grants  already 
made.  All  valid  titles  to  lands  within  the  other  territories  ceded 
to  the  United  States  will  remain  unaffected  by  the  change  of 
sovereignty;  .  .  . "  2  The  Senate  complied. 

Article  XI :  The  United  States  agreed  to  restrain  the  Indians 
in  the  cession  to  the  same  extent  as  it  did  those  in  the  remainder 
of  the  American  territory.  It  was  declared  unlawful  for  an 
American  to  purchase  Mexicans  held  captive  by  the  Indians  or 
to  buy  Mexican  property  stolen  by  the  Indians. 

Article  XII:  For  the  extension  of  boundaries  the  United 
States  agreed  to  pay  $15,000,000;  $3,000,000  of  which  should 
be  paid  immediately  upon  ratification  of  the  treaty  by  Mexico, 
and  the  remainder  in  four  equal  annual  installments  with  in- 
terest at  six  per  cent.  Polk  had  authorized  Trist  to  go  as  high 
as  $20,000,000. 

Articles  XIII,  XIV,  and  XV  related  to  the  claims  of  Americans 
against  Mexico.  The  United  States  agreed  to  pay  all  those  of 
Americans  that  had  been  decided  against  Mexico  and  not  yet 
liquidated.  The  United  States  agreed  to  discharge  those  claims 
of  citizens  not  heretofore  decided  up  to  the  amount  of  $3,250,000. 
The  exoneration  of  Mexico  from  these  demands  of  American 
citizens  should  be  complete.  Mexico  agreed  to  furnish  any 
documents  in  her  possession  necessary  for  the  adjustment  of 
these  claims.  The  American  commission  created  for  this  purpose 
by  Congress,  March  3,  1849,  did  allow  claims  to  the  extent  of 
$3,208,314.96. 

Article  XVI:  Complete  right  of  fortification  along  the  bound- 
ary was  reserved  by  both  parties.  Article  XVII :  The  Commer- 

1  Sen.  Doc.  52,  30  Cong.,  i  sess.,  49. 
1  Richardson,  Messages,  etc.,  IV.:  573. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          219 

cial  Treaty  of  1831  was  revived  for  eight  years  and  indefinitely 
thereafter  subject  to  termination  on  one  year's  notice  from 
either  party.  Mexico  gave  such  notice  on  November  30,  1880. 

Articles  XVIII,  XIX,  and  XX  related  to  the  exemption 
from  customs  duties  of  supplies  for  the  American  army  and 
to  penalties  in  case  of  fraudulent  use  of  this  privilege. 

Article  XXI  stipulated  that  in  case  of  dispute  between  the 
two  parties  concerning  "political  or  commercial  relations," 
they  would  endeavor  to  preserve  peace  and  friendship  by  using 
"mutual  representations  and  pacific  negotiations."  And  if 
they  could  not  thus  settle  their  differences,  resort  should  not  on 
that  account  be  had  to  reprisals,  aggression,  or  hostility  of  any 
kind;  but  the  one  aggrieved  should  consider  in  a  spirit  of  peace 
whether  it  might  not  be  better  to  submit  the  dispute  to  arbitra- 
tion. And  should  such  a  proposal  be  made  by  either  party,  the 
other  would  accede  to  it,  unless  deemed  "incompatible  with  the 
nature  of  the  difference,  or  the  circumstances  of  the  case." 

Article  XXII  contained  restrictions  to  apply  in  case  war 
should  break  out  between  the  two  republics,  "absolutely  where 
the  nature  of  the  subject  permits,  and  as  closely  as  possible  in  all 
cases  where  such  absolute  observance  shall  be  impossible," 
merchants  of  either  party  residing  in  the  territory  of  the  other 
were  allowed  twelve  months  if  living  in  the  interior  and  six 
months  if  living  in  the  seaports  to  collect  their  debts,  settle 
their  affairs,  and  freely  depart.  In  case  of  invasion  the  following 
should  "be  allowed  to  continue  their  respective  employments, 
unmolested  in  their  persons,"  "women  and  children,  scholars 
of  every  faculty,  cultivators  of  the  earth,  merchants,  artisans, 
manufacturers,  and  fishermen,  unarmed  and  inhabiting  unforti- 
fied towns,  villages  or  places. "  The  houses  and  goods  of  these 
should  not  be  destroyed;  and  if  necessity  should  arise  to  take 
anything  from  them  for  the  use  of  the  armed  forces,  it  should  be 
paid  for  at  an  equitable  price.  All  charitable  institutions  should 
be  respected.  Prisoners  of  war  should  not  be  confined  in  prisons, 
nor  be  put  in  irons,  or  "  restrained  in  the  use  of  their  limbs; "  they 
should  be  placed  in  cantonments  and  "lodged  in  barracks  as 
roomy  and  good  as  are  provided  by  the  party  in  whose  power 


220  LEADING  AMERICAN  TREATIES 

they  are  for  its  own  troops. "  Officers  should  be  given  liberty 
on  parole  "within  convenient  districts."  If  these  prisoners 
should  escape  and  be  caught  in  arms,  they  could  be  dealt  with 
"according  to  the  established  laws  of  war."  Officers  were 
to  be  daily  furnished  with  as  many  rations,  and  of  the  same 
articles,  as  might  be  allowed  in  kind  or  commutation  to  officers 
of  equal  rank  in  the  army  of  the  captor  state  and  the  ordinary 
prisoner  should  have  the  same  rations  as  the  common  soldier. 
These  rations  should  be  paid  for  by  the  home  state  of  the  pris- 
oner of  war  when  peace  was  to  be  reestablished. 

Article  XXIII  allowed  four  months  hi  which  to  bring  about 
ratification  by  the  two  parties  and  an  exchange  of  ratifications. 
A  secret  article  extended  this  term  to  eight  months;  but  this  was 
stricken  out  by  the  United  States  Senate. 

On  that  Sunday,  February  20,  1848,  "The  question  to  be 
decided."  the  President  noted,  "was  stated,  viz.,  whether  the 
treaty  should  be  rejected  by  me  or  sent  to  the  Senate  for  rati- 
fication. A  free  discussion  ensued.  I  took  the  advice  of  the  Cab- 
inet separately  and  individually.  Mr.  Buchanan  and  Mr. 
Walker  advised  that  I  should  reject  it.  Mr.  Mason,  Mr.  Marcy, 
Mr.  Johnson,  and  Mr.  Clifford  advised  that  I  should  accept  it 
and  send  it  for  ratification  to  the  Senate. "  *  All  agreed  that 
Article  X  should  be  rejected. 

Buchanan's  negative  advice  nettled  the  President.  "  I  cannot 
help  laboring  under  the  conviction,"  he  wrote,  "that  the  true 
reason  of  Mr.  Buchanan's  present  course  is  that  he  is  now  a 
candidate  for  the  Presidency,  and  he  does  not  wish  to  incur  the 
displeasure  of  those  who  are  in  favour  of  the  conquest  of  all 
Mexico.  That  he  earnestly  wishes  me  to  send  the  treaty  to  the 
Senate  against  his  advice,  I  am  fully  convinced,  not  from  any- 
thing he  has  said,  but  from  circumstances  and  his  general  bearing 
I  do  not  doubt.  No  candidate  for  the  presidency  ought  ever  to 
remain  in  the  Cabinet.  He  is  an  unsafe  adviser. "  2 

On  the  next  day,  Polk  called  the  cabinet  together  again 
and  for  the  first  time  informed  them  that  he  had  decided  to 

'Polk,  Diary,  III.:  347. 
'Ibid.,  III.:  350. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          221 

submit  the  treaty  to  the  Senate.  He  gave  as  his  reasons  that 
on  the  boundary  Trist  had  adhered  to  his  instructions;  that 
it  was  doubtful  whether  more  territory  could  be  obtained; 
that  if  he  should  reject  the  treaty,  Congress  might  refuse  to 
authorize  men  and  money  for  the  prosecution  of  the  war; 
and  that  if  he  should  reject  his  own  terms,  offered  the  April 
before,  he  feared  the  results  upon  his  own  political  party.1 

On  that  same  day  John  Quincy  Adams  in  the  House  of 
Representatives  suffered  a  paralytic  stroke,  which  caused  the 
adjournment  of  both  Houses  until  Wednesday.  In  the  brief 
message  delivered  to  the  Senate  on  that  day,  Polk  reviewed  the 
actions  of  Trist  and  recommended  the  ratification  of  the  treaty. 
On  February  28,  the  Senate  committee  on  foreign  relations 
decided  to  report  the  treaty  adversely,  not  because  of  the 
treaty  itself,  but  because  of  it  having  been  negotiated  by  Trist 
after  his  recall.  The  President  informed  Chairman  Sevier  that 
it  was  the  treaty  and  not  the  conduct  of  Trist  that  was 
before  them  for  their  approval.  Thereupon,  the  committee 
changed  its  decision  and  reported  the  treaty  without  recom- 
mendation. Webster  opposed  the  treaty,  for  the  reason  that  it 
was  presumed  to  extend  slave  territory.  Houston  opposed  it 
because  the  boundary  was  not  stretched  southward  to  include 
Tampico;  and  he  had  the  support  of  Jefferson  Davis.  Baldwin 
of  Connecticut  failed  in  his  attempt  to  insert  the  Wilmot 
proviso.  The  final  vote  on  advising  ratification  took  place  on 
March  10,  1848,  with  38  in  favor  and  14  opposed  to  the  treaty. 

Polk  appointed  Senator  Sevier  and  his  Attorney  General, 
Nathan  Clifford,  as  commissioners  to  go  to  Mexico,  and  there 
hi  accordance  with  the  provisions  of  the  treaty  obtain  an  ex- 
change of  ratifications.  They  were  also  charged  with  the  task 
of  explaining  the  amendments  made  by  the  American  Senate. 

During  the  two  months  since  the  signature  of  the  treaty 
political  conditions  in  Mexico  had  been  in  a  state  of  flux  but 
the  sum  total  of  change  had  been  small.  Butler  had  superseded 
Scott  as  commander  of  the  American  army.  Colonel  Sterling 
Price  had  captured  Chihuahua  in  March,  1848.  Butler  had 
,  Diary,  III.:  347. 


222  LEADING  AMERICAN  TREATIES 

entered  into  a  formal  armistice.  The  Mexican  Congress  had 
been  unable  to  summon  a  quorum.  That  a  treaty  had  been 
signed  the  Mexicans  knew;  but  the  government  maintained  a 
policy  of  secrecy  as  to  its  terms.  The  Puros,  or  the  radical 
faction,  were  opposed  to  any  treaty,  and  wanted  the  complete 
annexation  of  entire  Mexico  to  the  United  States;  hence,  they 
urged  the  continuance  of  anarchy  and  of  the  war.  The  Mexicans 
of  the  property  class  had  gloomy  forebodings  about  conditions 
when  the  American  army  should  withdraw.  They  had  confi- 
dence in  Scott  and  they  urged  him  to  issue  a  proclamation  de- 
claring himself  dictator,  when  the  treaty  should  be  ratified. 
Scott  acknowledged  afterward  that  these  proffers  had  been 
"highly  seductive  both  as  to  power  and  fortune. "  l  The  royalist 
group  under  Paredes  renewed  its  activity  and  used  opposition  to 
the  treaty  as  a  rallying  cry.  But  these  were  rather  factions 
than  parties.  The  great  body  of  Mexicans  realized  that  there 
was  nothing  to  do  but  to  ratify  the  treaty,  no  matter  what 
the  terms.  The  difficulty  that  Sevier  and  Clifford  found  was 
that  no  leaders  wished  to  assume  responsibility  and  act. 

Finally,  President  Pena  y  Pena  brought  himself  to  review 
in  his  message  to  Congress  the  heroic  efforts  of  Mexico  in  achiev- 
ing her  independence  and  of  the  courage  and  firmness  of  the 
soldiers  in  the  present  war.  "I  have  never  believed,"  said  he, 
"neither  do  I  now  believe,  that  the  republic  is  absolutely  incap- 
able of  continuing  the  war,  and  affording  an  example  which 
might  be  transmitted  with  glory  to  posterity.  But  with  the 
same  frankness  and  good  faith,  I  must  say  that  I  am  convinced 
that  the  condition  in  which  we  are,  with  all  its  attendant  cir- 
cumstances, imperiously  calls  for  peace. "  He  enumerated  the 
advantages  which  Mexico  obtained  by  the  treaty,  the  guaranty 
by  the  United  States  of  liberty  and  property  to  those  Mexicans 
who  lived  in  the  territory  ceded.  The  cession  was  small  com- 
pared to  what  they  might  have  lost.  The  $15,000,000  which 
the  United  States  was  to  pay  he  spoke  of  as  an  "indemnity." 
The  release  from  American  claims  was  a  considerable  item. 
The  alleviation  of  the  calamities  of  war,  if  it  should  again  occur, 
'Scott,  Autobiography:  581. 


THE  TREATY  OF  GUADALUPE  HIDALGO,  1848          223 

and  the  obligation  on  the  part  of  the  United  States  to  restrain 
the  Indian  tribes  constituted  great  advantages.  He  expressed 
regret  that  the  American  Senate  had  seen  fit  to  make  amend- 
ments; but  these  were  not  of  sufficient  importance  to  warrant 
rejection  of  the  treaty.1  The  Minister  of  War  furnished  Con- 
gress with  a  report  that  if  the  treaty  were  rejected  it  would  be 
impossible  to  continue  hostilities.  The  Minister  of  Foreign 
Relations,  who  had  also  charge  of  the  treasury,  pointed  out  the 
financial  straits  of  the  country  and  his  reasons  for  ratification. 
The  Deputies  approved  on  May  IQ,  1848,  by  a  vote  of  51  to  35; 
and  the  Senate  approved  on  May  25  by  a  vote  of  33  to  4.  Not 
until  May  30,  1848,  were  the  ratifications  exchanged;  and  the 
American  commissioners  turned  over  the  stipulated  $3,000,000. 
Trist  had  reached  Washington  in  due  time,  and  found  all 
doors  at  the  State  Department  closed  to  him.  At  the  time  of 
his  recall,  his  salary  and  allowances  had  been  canceled.  In 
vain  did  he  attempt  to  secure  a  hearing.  On  August  7,  he 
addressed  a  long  communication  to  the  Speaker  of  the  House, 
asking  for  redress  and  for  the  impeachment  of  the  President. 
The  Speaker  referred  the  letter  to  the  committee  on  foreign 
affairs  where  it  was  pigeonholed.  Anxious  as  officials  appear  to 
have  been  to  forget  him,  Trist  would  not  be  forgotten.  At  last 
he  obtained  the  ear  of  Senator  Sumner  at  whose  instance 
Congress  appropriated  $14,560,  April  20,  1871.  Trist  could 
feel  in  the  closing  years  of  his  life  that  he  had  been  vindicated. 

BIBLIOGRAPHY 

BUCHANAN,  JAMES.— Works,  VI,   VII,   VIII.     Edited  by  J.   B.  Moore. 

Philadelphia,   1909. 
POLK,  JAMES  K. — Diary.   4  volumes.    Edited  by  Milo  M.  Quaife.    Chicago, 

1910. 
REEVES,  J.  S. — American    Diplomacy    under    Tyler  and  Polk.     Baltimore, 

1907. 
RICHARDSON,  JAMES  D. — Messages   and  Papers  of  the  Presidents,  Vol.  IV. 

Washington,  1897. 
RIVES,  GEORGE  L. — The  United  States  and  Mexico,  1821-1848.    2  volumes.. 

New  York,  1913. 

1 H.  R.  Doc.  50,  30  Cong.,  2  sess.,  62. 


224  LEADING  AMERICAN  TREATIES 

SMITH,  E.  KIRBY. — To  Mexico  with  Scott.    Cambridge,  1917. 

SMITH,  JUSTIN  H. — The  War  with  Mexico.    2  volumes.    New  York,  1919. 

United  States.  House  Executive  Documents:  38,  40,  56,  60,  30  Cong.,  i  sess. 
50,  30  Cong.,  2  sess.  Washington,  1849. 

United  States.  Senate  Executive  Document:  52,  30  Cong.,  i  sess.  Washing- 
ton, 1848. 


CHAPTER  XI 

THE   PERRY    AND    HARRIS    TREATIES    WITH 
JAPAN,    1854  AND    1858 

"Nippon  and  America,  all  the  same  heart." — MATSUSAKI  TO  PERKY. 

American  naval  officers  render  services  daily  in  the  promotion 
of  international  good  will.  The  services  may  consist  of  a  salute, 
an  exchange  of  visits,  the  quieting  of  a  disturbance  which  might 
lead  to  war,  or  even  of  the  negotiation  of  agreements,  conven- 
tions, and  treaties.  As  yet  no  officer  has  performed  his  pacific 
mission  with  greater  distinction  nor  with  more  far-reaching 
results  than  Commodore  Matthew  Calbraith  Perry.  His  name 
is  better  known  today  among  the  school  children  of  Japan 
than  among  those  of  his  native  land. 

He  was  born  in  Newport,  Rhode  Island,  in  1794.  At  fifteen, 
he  entered  the  navy.  During  the  war  of  1812  he  served  first 
on  the  frigate,  "President,  "  and  later  on  the  "United  States," 
which  was  blockaded  in  the  harbor  of  New  London  for  the 
greater  part  of  the  war.  His  older  brother  won  the  decisive 
victory  on  Lake  Erie.  The  succeeding  years  M.  C.  Perry  spent 
in  the  merchant  service;  but  by  1819  he  had  reentered  the  navy. 
He  served  as  executive  officer  on  the  "Cyane,"  which  convoyed 
the  "Elizabeth"  with  her  pioneers  to  Liberia.  On  his  return  he 
assisted  to  extirpate  piracy  in  the  West  Indies.  From  1833  to 
1843  ne  was  stationed  at  the  Brooklyn  Navy  Yard,  and  during 
that  time  demonstrated  the  use  of  steam  as  a  motive  power  for 
war  vessels.  Then  he  commanded  the  squadron  on  the  African 
coast,  in  the  interest  of  destroying  the  international  slave  trade. 
And  during  the  Mexican  war  he  enforced  the  blockade  off  the 
Gulf  ports.  He  was  fifty-eight  years  of  age,  in  the  very  prime  of 
life  intellectually. 

His  new  task  consisted  hi  reopening  Japan  to  foreign  inter- 

225 


226  LEADING  AMERICAN  TREATIES 

course.  Japan  at  one  time,  1550  to  1620,  welcomed  western 
commerce  and  western  ideas.  But  religious  zealots  and  sharp 
traders  had  caused  a  revulsion  of  feeling.  The  English  East 
India  Company  had  to  abandon  its  factory  in  1623;  the  Span- 
iards had  to  leave  in  1624;  and  the  Portuguese  in  1638.  The 
Dutch  alone  were  permitted  to  remain.  They  had  conducted  no 
religious  propaganda,  and  their  commercial  dealings  had  been 
marked  with  honesty  and  fairness.  Even  the  Dutch  were  con- 
fined, 1641,  to  the  little  island  of  Dejima  in  the  harbor  of  Nag- 
asaki. And  their  number  of  ships  was  limited  at  first  to  six, 
then  to  two,  and  in  1790,  to  one  a  year.  The  Chinese  were 
restricted  to  the  same  port,  with  a  maximum  after  1740  of  ten 
junks  a  year.  So  that  for  more  than  two  centuries  Japan  had 
remained  virtually  a  hermit  nation. 

Other  nations  had  made  unsuccessful  efforts  to  reopen  Japan. 
Russia's  jurisdiction  had  been  extended  across  Siberia  to  the 
Pacific  by  1638.  The  Russians  made  repeated  attempts  to 
secure  admission  to  Japan;  the  most  noteworthy  being  that  of 
Lieutenant  Laxman  in  1792,  who  carried  on  some  friendly 
negotiations.  In  1808  the  British  frigate,  "Phaeton,"  sailed 
into  Nagasaki  in  search  of  Dutch  merchantmen,  with  the 
result  that  several  Japanese  officers,  responsible  for  the  port, 
found  it  necessary  to  commit  hara-kiri.1  The  Dutch  had 
tried  to  open  negotiations  for  a  treaty  in  1844  and  again  in 
1852. 

Americans  had  likewise  made  several  attempts.  During  the 
Napoleonic  wars  they  had  taken  over  the  Dutch  carrying 
trade.  Several  American  vessels  under  Dutch  charters  entered 
the  port  of  Nagasaki  and  discharged  their  cargoes.  The  captain 
of  one  of  these  vessels,  Stewart,  appeared  later  with  a  cargo  on 
his  own  account;  but  he  was  refused  permission  to  land.  D.  W. 
C.  Olyphant  of  New  York  planned  the  second  serious  attempt 
in  1837.  Seven  shipwrecked  Japanese  had  been  picked  up  off 
the  coast  of  Vancouver.  Olyphant  had  for  years  carried  on 
trade  with  China,  and  he  fitted  out  a  special  ship  for  the  return 
of  these  Japanese.  With  them  he  sent  the  famous  German 

1  F.  L.  Hawk's  Narrative  or  Sen.  Doc.  79,  33  Cong.,  2  scss.,  part  I.:  42. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          227 

missionary,  Dr.  Gutzlaff,  and  two  American  missionaries,  Dr. 
Peter  Parker  and  Reverend  S.  Wells  Williams,  and  also  a  mem- 
ber of  Olyphant's  commercial  house,  Mr.  King.  He  placed  on 
board  a  considerable  collection  of  presents,  among  them  a 
telescope,  a  barometer,  a  set  of  United  States'  coins,  a  portrait  of 
Washington,  and  a  memorial,  written  in  Chinese,  setting  forth 
that  the  object  of  the  expedition  was  the  return  of  the  ship- 
wrecked Japanese  and  an  opening  of  friendly  relations.  The  vessel 
sailed  with  confidence  directly  for  the  capital,  Yedo,  where  the 
batteries  on  the  shore  opened  fire  upon  it.  No  one  was  permitted 
to  land  there  or  anywhere  along  the  coast;  and  the  expedition 
ended  at  Macao.  The  only  result  in  Japan  of  this  and  similar 
missions  was  the  issuance  of  an  edict  that  shipwrecked  Japanese 
could  be  returned  only  in  Dutch  or  Chinese  vessels  to  the  port 
of  Nagasaki.1 

The  third  effort  had  an  official  character,  in  that  the  American 
diplomatic  representative  to  China,  Edward  Everett,  entrusted 
to  Commodore  Biddle  the  duty  of  ascertaining  whether  the  ports 
of  Japan  were  accessible.  Biddle  sailed  for  Yedo  with  two  naval 
vessels  and  cast  anchor  there  July  20,  1846.  He  was  honored 
with  a  reply  seven  days  later  stating  that  communications  from 
foreigners  could  be  received  only  at  Nagasaki;  that  the  Japanese 
ports  were  not  and  would  not  be  opened  to  Americans;  and  that 
he  must  depart  immediately  and  never  return. 

Besides  the  desire  for  commercial  intercourse  with  Japan, 
another  motive  actuated  the  United  States.  Since  1820  the 
interest  of  Americans  in  the  Pacific  whale  fisheries  had  grown 
greatly.  In  several  instances  the  fishermen  had  suffered  ship- 
wreck on  the  Japanese  coasts  and  had  been  treated  with  indig- 
nities and  cruelties.  Throughout  their  stay  they  were  held  as 
prisoners  with  only  one  port  of  exit,  Nagasaki,  and  with  only 
one  Dutch  vessel  a  year  leaving.  Commander  Glynn  of  the 
"Preble"  obtained  information  at  Canton  in  1849  that  fifteen 
shipwrecked  Americans  were  in  desperate  straits  at  Nagasaki. 
He  set  sail  forthwith  and  rather  unceremoniously  rescued  them.2 

1  Sen.  Doc.  59,  32  Cong.,  i  sess.,  78. 

2  Ibid.,  i. 


228  LEADING  AMERICAN  TREATIES 

It  was  also  urgent  that  these  Pacific  fishermen  should  have  the 
right  in  case  of  distress  to  obtain  water,  food,  and  fuel  from  the 
Japanese.1 

Perry  received  the  command  of  what  was  then  called  the 
East  India  squadron,  consisting  of  three  war  vessels  and  two 
transports;  and  to  these  were  to  be  added  eight  other  vessels. 
During  the  nine  months  of  waiting  for  the  equipment  of  the 
latter  vessels,  Perry  made  careful  preparations  for  the  execution 
of  his  mission.  At  his  instance  the  government  purchased 
charts  to  the  value  of  $30,000  from  the  Netherlands.  A  consid- 
erable library  on  Japan  was  collected  from  European  as  well 
as  American  bookstalls.  Applications  for  permission  to  join  the 
expedition  came  pouring  hi  from  all  parts  of  the  world;  but 
Perry  refused  them  all.  He  prepared  a  long  list  of  presents, 
including  samples  of  various  fire  arms,  a  barrel  of  whiskey,  a  cask 
of  wine,  and  quantities  of  cordials  and  champagne,  a  telescope,  a 
set  of  telegraph  instruments,  a  miniature  railway  train,  Audu- 
bon's  Birds  and  Quadrupeds,  eight  baskets  of  Irish  potatoes,  and 
the  not  to  be  forgotten  garden  seeds.2 

His  instructions  were  drafted  by  C.  M.  Conrad.  Secretary 
of  War  and  Acting  Secretary  of  State,  and  were  addressed  to 
John  P.  Kennedy,  the  Secretary  of  the  Navy,  who  conveyed 
them  to  Commodore  Perry,  November  13,  1852.  He  was  to 
obtain  humane  treatment  in  the  future  for  shipwrecked  Ameri- 
cans, to  secure  permission  for  American  vessels  to  enter  for  food, 
fuel,  and  supplies,  and  the  permission  of  American  "vessels  to 
enter  one  or  more  ports  for  the  purpose  of  disposing  of  their 
cargoes  by  sale  or  barter. "  He  was  not  to  mention  the  griev- 
ances of  other  nations,  nor  was  he  to  seek  any  exclusive  com- 
mercial advantage  for  the  United  States.  The  instructions 
expressed  the  desire  that  whatever  advantages  might  be  gained 
by  the  expedition  would  "ultimately  be  shared  by  the  civilized 
world. "  It  was  pointed  out  that  the  discovery  of  gold  in  Cali- 
fornia, the  railway  across  the  isthmus  of  Panama,  and  the  navi- 
gation of  the  ocean  by  steam  had  brought  the  two  countries 

1  Sen.  Doc.  34,  33  Cong.,  2  sess.,  6. 
1  Hawk's  Narrative,  Pt.  I.:  356. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          229 

closer  and  made  the  need  for  friendly  and  peaceful  intercourse 
imperative. 

But  the  question  was  how  were  these  objects  to  be  attained. 
Commodore  Perry  was  directed  to  proceed  with  his  squadron  to 
whatever  port  hi  Japan  he  deemed  most  advisable;  ask  to  see 
the  Emperor  in  person,  if  possible;  and  deliver  to  him  the  letter 
from  the  President.  He  could  assure  the  Japanese  that  the 
United  States,  unlike  other  Christian  countries,  did  not  inter- 
fere with  the  religion  of  its  people,  much  less  with  that  of  other 
nations.  He  should  explain  that  although  Americans  spoke  the 
same  language  as  the  English,  they  were  not  British  sub- 
jects, and  also  that  the  United  States  had  no  connection  with 
any  European  government. 

The  peaceful  character  of  the  mission  was  emphasized  through- 
out the  instructions.  Perry  was  to  bear  in  mind  that  "as  the 
President  has  no  power  to  declare  war,  his  mission  is  necessarily 
of  a  pacific  character,  and  will  not  resort  to  force  unless  in  self- 
defence  in  the  protection  of  the  vessels  and  crews  under  his 
command,  or  to  resent  an  act  of  personal  violence  offered  to 
himself  or  to  one  of  his  officers. "  Again  the  instructions  stated: 
"In  his  intercourse  with  this  people,  who  are  said  to  be  proud  and 
vindictive  in  their  character,  he  should  be  courteous  and  con- 
ciliatory, but  at  the  same  tune,  firm  and  decided.  He  will, 
therefore,  submit  with  patience  and  forbearance  to  acts  of 
discourtesy  to  which  he  may  be  subjected,  by  a  people  to  whose 
usages  it  will  not  do  to  test  by  our  standard  of  propriety,  but, 
at  the  same  time,  will  be  careful  to  do  nothing  that  may  com- 
promise, in  their  eyes,  his  own  dignity  or  that  of  the  country. 
He  will,  on  the  contrary,  do  everything  to  impress  them  with  a 
just  sense  of  the  power  and  greatness  of  this  country,  and  to 
satisfy  them  that  its  past  forbearance  has  been  the  result,  not 
of  timidity,  but  of  a  desire  to  be  on  friendly  terms  with  them. " 

An  impression  exists  that  Perry  went  to  Japan  to  obtain  a 
concession  by  force,  if  necessary.  To  remove  it,  one  more 
quotation  from  the  instructions  is  here  given.  "If,  after  having 
exhausted  every  argument  and  every  means  of  persuasion,  the 
commodore  should  fail  to  obtain  from  the  government  any 


230  LEADING  AMERICAN  TREATIES 

relaxation  of  their  system  of  exclusion,  or  even  any  assurance 
of  humane  treatment  of  our  shipwrecked  seamen,  he  will  then 
change  his  tone,  and  inform  them  in  the  most  unequivocal  terms 
that  it  is  the  determination  of  this  government  to  insist,  that 
hereafter  all  citizens  or  vessels  of  the  United  States  that  may  be 
wrecked  on  their  coasts,  or  driven  by  stress  of  weather  into  their 
harbors  shall,  so  long  as  they  are  compelled  to  remain  there,  be 
treated  with  humanity;  and  that  if  any  acts  of  cruelty  should 
hereafter  be  practised  upon  citizens  of  this  country,  whether 
by  the  government  or  by  the  inhabitants  of  Japan,  they  will  be 
severely  chastised. "  And  in  the  supplementary  instructions  of 
February  15,  1853,  Edward  Everett  stated,  "Make  no  use  of 
force,  except  in  the  last  resort  for  defence,  if  attacked,  and  self 
preservation. " 

Perry  was  then  invested  with  large  discretionary  powers, 
and  informed  that  so  far  as  the  main  object  of  his  mission 
permitted,  he  might  explore  the  coasts  of  Japan  and  gather  all 
the  knowledge  possible.1  How  wisely  the  American  government 
chose  its  agent  and  how  well  he  executed  his  mission  remains  to 
be  seen. 

Tired  of  delays  and  having  made  arrangements  for  the  other 
vessels  of  his  squadron  to  join  him  later,  Commodore  Perry  set 
sail  from  Norfolk  in  the  steam  frigate  "Mississippi"  on  November 
24,  1852.  He  reached  Madeira  in  seventeen  days;  Jamestown, 
St.  Helena  on  January  10,  1853;  Cape  Town  on  January  24; 
Mauritius  on  February  18;  Point  de  Galle,  Ceylon,  on  March  10; 
Singapore  on  March  25 ;  Hong  Kong  on  April  6,  where  the  sloops 
of  war  "  Plymouth  "  and  "  Saratoga  "  and  the  store  ship  "  Supply" 
were  waiting;  Napha  in  the  Lew  Chew  Islands  on  May  26,  where 
the  "Susquehanna"  joined  the  squadron  with  the  well  known 
traveler,  Bayard  Taylor,  on  board;  and  finally,  with  four  war 
vessels,  instead  of  twelve  as  promised,  he  entered  the  bay  of 
Yedo  on  July  8,  1853.  At  five  o'clock  in  the  afternoon  the 
squadron  cast  anchor  off  the  town  of  Uraga  with  the  lofty  cone 
of  Fujiyama  in  the  distance.  Hundreds  of  small  craft  sur- 
rounded the  vessels;  but  Perry  had  ordered  that  no  one  should 
1  Sen.  Doc.  34,  33  Cong.,  2  sess.,  2,  4. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          231 

be  permitted  to  come  on  board.  Several  attempted  to  climb 
the  anchor  chains,  but  they  were  warned  off  with  pikes  and 
pistols. 

A  conspicuous  boat  with  a  distinguished  looking  person  came 
alongside  Perry's  ship,  the  "Susquehanna".  Neither  was  this  per- 
son received.  He  unrolled  a  scroll  of  paper  on  which  was  written 
in  French  that  the  ships  had  anchored  at  their  peril  and  should 
depart.  Mr.  S.  Wells  Williams  informed  him  in  Chinese  that  the 
Commodore  would  receive  no  one  but  a  functionary  of  the  high- 
est rank.  They  seemed  to  have  difficulty  in  understanding  the 
language.  One  man  in  the  boat  said  in  good  English,  "I  talk 
Dutch. "  l  The  Dutch  interpreter,  Mr.  Portman,  took  up  the 
conversation.  The  Japanese  asked  if  the  vessels  were  American; 
he  appeared  to  have  knowledge  that  they  might  be  coming. 
He  urged  pertinaciously  that  he  be  allowed  to  come  on  board. 
But  Portman  refused  and  informed  him  that  the  commander  of 
the  squadron  was  of  the  highest  rank  and  could  confer  only  with 
the  highest  in  rank  at  Uraga.  The  Japanese,  who  spoke  Dutch, 
said  that  the  vice-governor  of  Uraga  was  in  the  boat  and  was  the 
proper  person  to  be  received.  Portman  asked  why  the  governor 
did  not  come.  The  laws  of  Japan  would  not  permit  him  to  step 
on  board  foreign  vessels  was  the  reply;  and  he  proposed  that 
the  commodore  should  appoint  an  officer  of  corresponding  rank 
to  the  vice-governor  for  a  conference.  After  a  proper  delay 
Perry  granted  the  request  and  appointed  Lieutenant  Contee 
to  receive  the  vice-governor,  Nagazima  Saburosuke.  Perry 
kept  himself  secluded  in  his  own  cabin  and  communicated  with 
the  Japanese  representative  through  his  aid  only. 

Perry  directed  that  the  dignitary  be  informed  that  he  had 
come  on  a  friendly  mission,  that  he  had  a  letter  from  the  Presi- 
dent of  the  United  States  to  the  Emperor;  and  he  hoped  that  a 
suitable  officer  would  be  appointed  to  receive  a  copy  of  the 
letter  and  to  set  a  day  for  the  delivery  of  the  original.  Nagazima 
replied  that  Nagasaki  was  the  only  place  for  the  negotiation  of 
foreign  business  and  that  the  squadron  would  need  to  go  there. 
Perry  replied  from  his  sanctum  through  his  aid  that  he  had 
1  Williams,  Journal  of  the  Perry  Expedition,  48. 


232  LEADING  AMERICAN  TREATIES 

purposely  chosen  Uraga  because  of  its  nearness  to  Yedo;  that  he 
would  not  go  to  Nagasaki;  that  he  expected  the  letter  to  be 
properly  received;  that  his  intentions  were  friendly,  but  he 
would  permit  no  indignity,  and  that  the  guard  boats  which  had 
been  collecting  around  the  vessels  should  be  immediately  re- 
moved or  he  would  disperse  them  by  force.  The  vice-governor 
stepped  quickly  to  the  gangway  and  gave  an  order  which  caused 
the  guard  boats  to  return  to  the  shore.  Perry  considered  this  his 
first  point  gained.  The  vice-governor  took  his  leave,  saying 
that  he  had  no  authority  to  make  any  promises,  but  that  an 
officer  of  high  rank  would  call  in  the  morning.  Thus  ended 
Perry's  first  day  in  Japanese  waters.1  He  had  thus  far  success- 
fully carried  out  his  resolve  "  to  demand  as  a  right,  and  not  to 
solicit  as  a  favor,  those  acts  of  courtesy  which  are  due  from  one 
civilized  nation  to  another. "  2 

On  the  following  morning  the  governor  himself  appeared. 
Perry  directed  that  he  be  received  by  Commanders  Buchanan 
and  Adams  and  Lieutenant  Contee.  Perry  noted,  "I  was  well 
aware  that  the  more  exclusive  I  should  make  myself,  and  the 
more  exacting  I  might  be,  the  more  respect  these  people  of 
forms  and  ceremonies  would  be  disposed  to  award  me  ..."  3 
The  governor  declared  that  Japanese  law  made  it  impossible  to 
receive  the  President's  letter  except  at  Nagasaki.  He  was 
informed  that  the  commodore  would  not  consent  to  this  pro- 
posal; that  if  a  suitable  person  were  not  appointed  to  receive  the 
documents,  he  would  go  on  shore  with  a  sufficient  force  and 
deliver  them  hi  person.  The  governor  promised  to  communicate 
with  Yedo  for  further  instructions.  The  officers  announced 
that  the  commodore  would  wait  three  days  for  a  reply.  The 
governor  had  on  this  visit  offered  water  and  supplies,  which 
were  courteously  refused.  He  had  been  permitted  to  take  a 
look  at  the  magnificent  box  which  contained  the  letter  of  the 
President  but  not  to  touch  or  examine  it. 

While  waiting  Perry  directed  that  a  survey  be  made  of  the 

1  Hawks,  Narrative,  Pt.  I.:  232. 
1  Perry,  Notes,  Sen.  Doc.  34,  33  Cong.,  2  sess.,  45. 
45. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          233 

harbor.  The  governor  appeared  and  voiced  a  protest.  He 
received  the  reply  that  the  commodore  was  complying  with 
American  law  which  was  for  him  as  inviolable  as  Japanese  law 
for  the  governor.  Perry  considered  this  his  second  point  gamed.1 

Promptly  on  the  third  day,  July  12,  1853,  at  10  o'clock 
in  the  morning,  the  governor  came  on  board  and  said  that  a 
special  building  would  be  erected  on  shore  for  the  reception 
of  the  commodore  and  his  suite  and  for  the  delivery  of  the  Presi- 
dent's letter  to  a  high  official  designated  by  the  Shogun.  But 
no  reply  would  be  given  in  Uraga;  it  would  be  transmitted  to 
Nagasaki  through  the  Dutch  superintendent.  He  was  informed 
that  the  commodore  would  receive  the  reply  nowhere  except  in 
that  neighborhood.  The  governor  said  he  would  return  the 
next  morning  with  more  definite  information.  He  failed  to 
return  until  the  next  afternoon,  apologized  for  his  tardiness, 
vouched  for  the  high  character  of  the  officer  who  should  receive 
the  commodore,  and  exhibited  a  copy  of  the  instructions  from 
the  Shogun  to  the  Prince  of  Idzu,  who  would  bring  the  Presi- 
dent's letter  to  Yedo. 

On  July  14  Perry  landed  with  400  officers  and  men,  well 
armed  and  equipped,  and  marched  to  the  building  erected  for 
his  reception.  Five  to  seven  thousand  Japanese  troops  sur- 
rounded the  spot,  which  was  also  covered  by  the  guns  of  the 
American  ships  in  the  harbor.  Perry  delivered  the  President's 
letter,  his  letter  of  credence,  and  three  communications  from 
himself.  The  Prince  of  Idzu  gave  him  a  receipt,  which  men- 
tioned that  since  the  place  was  not  designed  to  treat  with 
foreigners  neither  conference  nor  entertainment  could  take  place 
and  requested  Perry  to  depart.  Perry  continued  the  survey  of 
the  harbor  for  several  days.  The  governor  of  Uraga  came 
alongside  with  presents.  He  was  told  that  these  would  be 
accepted  on  condition  that  he  would  receive  presents  in  return. 
He  gave  the  then  familiar  excuse  that  Japanese  law  forbade  the 
reception  of  presents.  He  was  told  that  American  law  enjoined 
reciprocity  of  courtesies.  He  yielded.  But  when  he  saw  the 
amount  he  begged  to  be  permitted  to  take  only  what  he  could 
1  Perry,  Notes,  Sen.  Doc.  34,  33  Cong.,  2  sess.,  47. 


234  LEADING  AMERICAN  TREATIES 

conceal.  Perry  directed  that  if  he  did  not  take  all  the  articles 
in  an  open  manner  his  own  presents  would  be  returned.  Again 
he  yielded.  Perry  counted  this  exchange  of  presents  as  another 
point  gained.1 

Perry  had  been  assured  by  the  governor  and  he  knew  before- 
hand that  a  reply  to  the  President's  letter  would  require  time 
for  deliberation  and  if  acceded  to  would  alter  many  laws  and 
traditions  of  the  empire.  He  had  also  found  his  supply  of  water 
short.  For  those  two  reasons  he  had  mentioned  hi  one  of  his 
communications  to  the  Shogun  that  he  would  await  the  reply 
on  his  return  to  Yedo  Bay  in  the  spring.2  Consequently,  after  a 
ten  day  stay  in  the  bay,  Perry  departed  for  Hong  Kong. 

A  Russian  squadron  under  Admiral  Pontiatine  had  offered  to 
cooperate  with  Perry;  and  it  visited  Nagasaki  twice  during 
the  winter  of  1853  and  1854.  Perry  had  reason  to  think  a  French 
squadron  was  on  its  way  to  Japanese  waters.  He  feared  that 
his  opportunity  might  fall  into  other  hands,  and  left  Hong  Kong, 
therefore,  on  January  14,  1854.  At  the  Lew  Chew  Islands, 
the  Dutch  agent  met  him  with  a  letter  from  the  Japanese  author- 
ities, stating  that  the  Shogun  had  died,  and  asking  Perry  to 
delay  his  return  until  after  the  period  of  mourning.  But  Perry's 
squadron  of  seven  ships  put  in  its  appearance  at  Yedo  Bay  on 
February  13. 

Perry  received  the  news  that  the  fleet  would  be  treated 
with  courtesy,  that  the  Shogun  would  appoint  a  suitable 
person  to  confer  with  him,  and  that  Kamakura  in  the  outer  bay 
had  been  designated  as  the  place  for  the  negotiations.  To 
the  latter  Perry  objected.  The  Japanese  proposed  Uraga.  Perry 
wanted  to  go  to  Yedo.  They  compromised  on  Yokohama. 
After  many  formalities  in  the  observance  of  which  Perry  easily 
equalled  the  Japanese,  the  five  Japanese  commissioners  received 
Perry  at  noon  on  March  8.  Refreshments  were  served.  The 
courteous  reply  to  the  President's  letter  was  received  by  Perry. 
He  replied  orally,  and  at  the  close  handed  the  Japanese  a  draft 
of  a  treaty  similar  to  the  American  treaty  with  China  in  1844. 

1  Perry,  Notes,  Sen.  Doc.  34,  33  Cong.,  2  seas.,  53. 
'Ibid,  54. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          235 

An  American  seaman  having  died  on  board  the  "Mississippi" 
Perry  asked  for  the  right  of  burial.  The  Japanese  replied 
that  the  body  could  be  sent  to  Nagasaki.  Perry  insisted  on 
burial  on  shore  there;  and  the  Japanese  yielded.  They  then 
agreed  upon  March  13  for  the  reception  of  the  presents  from 
the  President  to  the  Emperor.  The  Japanese  were  duly  sur- 
prised at  the  telegraph  instruments  conveying  instantly  mes- 
sages even  in  their  own  language.  They  rode  on  top  of  the 
Lilleputian  railway  train,  examined  the  fire  arms  with  intense 
curiosity,  and  made  some  notes  and  sketches  of  the  various 
articles. 

On  March  17  the  negotiations  began  in  earnest.  To  Perry's 
project  of  a  treaty  the  Japanese  replied  that  they  were  not  ready 
to  make  such  concessions.  Instead,  they  came  with  an  informal 
project  of  their  own,  in  which  the  word  Nagasaki  appeared 
in  nearly  every  proposition.  They  conceded  that  food  and 
fuel  could  be  obtained  by  American  ships  at  Nagasaki  at  the 
same  prices  paid  by  the  Dutch  and  Chinese  and  to  be  paid  for 
in  silver  or  gold.  After  five  years  another  port  might  be  opened 
for  a  similar  purpose.  Perry  replied  that  this  was  well  enough, 
but  that  one  or  more  ports  must  be  substituted  for  Nagasaki, 
which  was  out  of  the  route  of  American  commerce,  and  that 
these  ports  must  be  opened  within  sixty  days.  The  manner  of 
payment  for  the  articles  received  should  be  arranged  by  treaty. 
The  Japanese  proposed  that  American  shipwrecked  sailors  and 
their  property  should  be  sent  to  Nagasaki  by  sea.  Perry  agreed 
except  as  to  the  port. 

The  Japanese  stated  that  they  could  not  possibly  distinguish 
between  foreign  sailors  who  were  pirates  and  those  who  were  not; 
hence  these  sailors  should  not  be  allowed  to  walk  about  wherever 
they  pleased.  Perry  replied  that  shipwrecked  men  and  others 
who  resorted  to  the  ports  of  Japan  should  not  be  confined,  but 
should  be  granted  the  same  freedom  granted  to  Japanese.  They 
should,  however,  be  amenable  to  such  laws  as  might  be  agreed 
upon  by  treaty. 

The  fourth  Japanese  proposal  specified  that  at  Nagasaki 
Americans  should  have  no  intercourse  with  the  Dutch  or  the 


236  LEADING  AMERICAN  TREATIES 

Chinese.  Perry  replied  that  Americans  would  never  submit  to 
such  restrictions  as  had  been  imposed  upon  the  Dutch  or  the 
Chinese  and  that  any  further  allusion  to  such  restraints  would 
be  considered  offensive. 

Perry  had  asked  for  the  opening  of  a  port  in  the  Lew  Chew 
Islands.  The  Japanese  said  that  these  islands  constituted  a  very 
distant  country  and  that  they  could  not  discuss  the  opening  of  a 
harbor.  Perry  replied  that  there  was  no  good  reason  for  exclud- 
ing the  Americans;  therefore,  the  point  would  be  insisted  upon. 
In  regard  to  the  port  of  Matsumai  on  the  island  of  Yezo,  the 
Japanese  made  a  similar  statement;  and  Perry  made  a  similar 
reply.1 

These  propositions  were  not  discussed  in  as  summary  a 
manner  as  here  indicated.  The  Japanese  commissioners  inter- 
posed all  possible  difficulties,  especially  that  the  laws  of  the 
empire  forbade  the  granting  of  the  concessions.  The  nego- 
tiations were  conducted  largely  through  oral  discussions  by 
means  of  interpreters.  At  the  end  of  each  session  Perry  and  the 
Japanese  negotiators  would  exchange  statements  on  the  points 
agreed  upon.  These  statements  were  usually  written  in  three 
different  languages,  Japanese,  Chinese,  and  Dutch. 

When  the  main  points  of  the  treaty  had  been  quite  definitely 
settled,  the  Japanese  commissioners  invited  Perry  on  March  24 
to  receive  the  gifts  from  the  Shogun.  These  consisted  of  speci- 
mens of  rich  brocades  and  silks,  lacquered  boxes,  trays,  and 
tables,  porcelain  ware  of  wonderful  lightness  and  artistic  work- 
manship, fans,  and  articles  of  apparel.  A  set  of  Japanese  coins 
Perry  appreciated  greatly,  because  the  law  against  the  export  of 
coins  had  been  suspended  for  the  occasion.  Perry  had  previously 
invited  the  commissioners  with  then*  attendants  to  dine  with 
him  on  board  the  flag  ship.  This  they  accepted  and  mentioned 
Saturday,  March  25,  as  the  date.  Perry  suggested  that  Saturday 
might  prove  stormy,  that  the  next  day  was  his  Sabbath  when  he 
could  not  receive  company,  and  that  he  preferred  to  have  the 
honor  of  their  presence  on  Monday.  It  was  so  arranged. 

And  a  great  dinner  it  must  have  been,  for  Hawks  in  his 
'Perry,  Notes,  Sen.  Doc.  34,  33  Cong.,  2  seas.,  128. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          237 

"Narrative"  devotes  three  quarto  pages  to  its  description. 
Hayashi,  the  leading  commissioner,  ate  and  drank  sparingly, 
but  tasted  of  every  dish  and  sipped  of  every  kind  of  wine. 
Says  Hawks:  "The  others  proved  themselves  famous  trencher- 
men, and  entered  more  heartily  than  their  chief  into  the  conviv- 
iality of  the  occasion.  Matsusaki  was  the  soul  of  the  party.  .  . " 
"In  the  eagerness  of  the  Japanese  appetite,  there  was  but  little 
discrimination  in  the  choice  of  dishes  and  in  the  order  of  courses, 
and  the  most  startling  heterodoxy  was  exhibited  in  the  confused 
commingling  of  fish,  flesh,  and  fowl,  soups  and  syrups,  fruits  and 
fricassees,  roast  and  boiled,  pickles  and  preserves.  As  a  most 
generous  supply  had  been  provided,  there  were  still  some  rem- 
nants of  the  feast  left,  after  the  guests  had  satisfied  their  voracity, 
and  most  of  these,  the  Japanese  hi  accordance  with  their  usual 
custom,  stowed  away  about  their  persons  to  carry  off  with  them. 
The  Japanese  always  have  an  abundant  supply  of  paper  within 
the  left  bosom  of  their  loose  robes  in  a  capacious  pocket." 
Toward  the  close  of  his  description  Hawks  states:  "It  was  now 
sunset,  and  the  Japanese  prepared  to  depart  with  quite  as  much 
wine  in  them  as  they  could  well  bear.  The  jovial  Matsusaki 
threw  his  arms  about  the  Commodore's  neck,  crushing,  in  his 
tipsy  embrace,  a  pair  of  new  epaulettes,  and  repeating,  hi  Jap- 
anese, with  maudlin  affection,  these  words,  as  interpreted  into 
English:  "Nippon  and  America,  all  the  same  heart."  1  As  the 
last  boat  pulled  off  a  salute  of  seventeen  guns  was  fired.  And  the 
day  was  done. 

The  next  morning  Perry  met  the  Japanese  in  conference 
on  the  remaining  details  of  the  treaty.  He  found  them  more 
sober  than  usual  and  also  more  willing  to  make  concessions. 
They  agreed  upon  the  opening  of  two  ports  in  Japan  proper, 
Shimoda  and  Hakodate,  and  of  Napha  hi  the  Lew  Chew  Islands; 
although  Napha  was  not  mentioned  in  the  treaty,  for  it  was  a 
question  whether  the  Lew  Chew  Islands  belonged  to  Japan. 
Perry  named  the  distance  in  the  country  to  which  Americans 
might  go  around  the  Japanese  ports,  and  it  was  accepted. 
But  Americans  were  not  to  have  permanent  residence  with  their 
^en.  Doc.  79,  33  Cong.,  2  sess.,  Pt.  I.:  374. 


238  LEADING  AMERICAN  TREATIES 

families  in  these  ports.  Perry's  proposition  on  consular  agents 
caused  the  Japanese  great  anxiety.  He  maintained  firmly  that 
these  agents  would  serve  for  the  protection  of  the  Japanese  as 
well  as  for  his  own  countrymen.  They  conceded  that  one  such 
might  live  at  Shimoda,  but  not  until  eighteen  months  after  the 
date  of  the  treaty  had  elapsed.  Another  point  made  the 
Japanese  apprehensive.  Perry  explained  that  in  accordance 
with  American  law  the  treaty  could  not  be  considered  binding 
as  soon  as  signed  by  the  plenipotentiaries.  Perry  proceeded 
thereupon  to  allay  their  fears,  knowing  that  all  the  concessions 
agreed  to  were  to  come  from  them.  And  he  promised  them  the 
friendship  and  forbearance  of  the  United  States.  Finally,  on 
Friday,  March  31,  1854,  the  treaty  was  signed  with  proper 
ceremonies.  Perry  signed  three  copies  in  the  English  language, 
accompanied  by  translations  hi  the  Dutch  and  Chinese  languages. 
The  Japanese  signed  and  delivered  to  Perry  three  drafts  written 
hi  Japanese,  Chinese,  and  the  Dutch  languages. 

The  treaty  consisted  of  twelve  articles.  Article  I  established 
a  perfect  and  permanent  peace  between  the  two  countries. 
Article  II  opened  the  port  of  Shimoda  at  once  to  American 
vessels  for  the  purchase  of  fuel  and  necessities,  and  the  port  of 
Hakodate  one  year  later.  Payment  for  the  goods  was  to  be 
in  gold  or  silver  in  accordance  with  a  schedule  of  prices  furnished 
by  the  Japanese.  Articles  III,  IV,  and  V  assured  assistance  to 
American  shipwrecked  sailors,  security  for  their  property,  and 
humane  treatment  during  their  stay.  And  their  movements 
should  be  free  within  seven  Japanese  miles  of  the  two  ports. 
The  reciprocal  assistance  of  the  United  States  to  Japanese 
shipwrecked  was  likewise  provided  for.  Article  VI  called  for 
careful  deliberation  between  the  parties  if  any  other  goods  were 
needed  or  any  other  business  had  to  be  arranged.  By  this 
provision  Perry  opened  the  way  for  Harris'  commercial  treaties. 
In  the  meantime  Americans  should  have  the  right  to  trade  under 
such  regulations  as  the  Japanese  government  might  establish 
(Article  VII).  Article  VIII  specified  that  all  food,  fuel,  and 
necessities  should  be  obtained  through  the  agency  of  Japanese 
officers.  Article  IX  granted  to  the  United  States  and  its  citizens 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          239 

most  favored  nation  treatment.  Article  X  limited  the  visit  of 
American  vessels  to  the  ports  of  Shimoda  and  Hakodate  except 
when  in  distress.  Article  XI  permitted  the  residence  in  Shimoda 
of  an  American  consul  after  the  lapse  of  eighteen  months  from 
the  signing  .of  the  treaty.  And  Article  XII  provided  for  the 
exchange  of  ratifications  within  eighteen  months.  These  were 
exchanged  on  February  21,  1855;  and  the  treaty  was  proclaimed 
in  the  United  States  on  June  22,  1855. 1 

Those  were  the  terms  of  the  first  modern  treaty  negotiated 
with  Japan.  Perry  recognized  fully  its  limitations.  But  he 
had  succeeded  in  rousing  Japan  from  her  more  than  two  cen- 
turies of  seclusion.  At  his  instance  she  had  set  aside  immemorial 
laws  and  customs.  She  had  recognized  humane  principles  in 
the  treatment  of  foreigners.  The  shipwrecked  were  no  longer 
to  be  treated  as  criminals.  Ports  had  been  opened  for  the 
purchase  of  food  and  supplies.  The  most  favored  nation  clause 
had  been  inserted.  The  beginnings  of  commerce  were  recog- 
nized. In  short,  Perry  had  awakened  the  latent  powers  of  a 
nation,  which  was  to  forge  its  way  faster  than  any  other  in  the 
world's  history  to  the  forefront  among  the  states  of  the  world. 

Great  causes  had  no  doubt  been  at  work  for  a  long  time 
in  paving  the  way  for  the  opening  of  Japan.  Perry  recognized 
that  the  time  was  imminent  or  he  would  not  have  hurried  away 
from  Hong  Kong  in  January  of  that  year.  Among  these  causes 
needs  to  be  mentioned  the  presence  of  the  Dutch  in  the  port  of 
Nagasaki.  They  had  educated  Japanese  opinion  on  the  progress 
of  events  outside  the  small  empire,  such  as  steam  navigation  and 
Britain's  forceful  opening  of  China  to  trade.  The  repeated 
visits  of  Russian,  French,  and  British  vessels,  public  and  private, 
to  Japanese  waters  may  have  been  another  cause.  A  third 
cause  consisted  in  the  advance  of  Russian  jurisdiction  down 
the  Asiatic  coast.  Even  to  the  Japanese,  seclusion  could  hardly 
mean  self  defense.  There  had  been  and  were  Japanese  leaders 
who  advocated  foreign  intercourse.  They  may  have  been 
persecuted  as  were  Watanabe,  Takano,  Sakuma,  and  others;  but 
their  influence  lived  on. 

1Malloy,  Treaties,  etc.,  I.:  998. 


240  LEADING  AMERICAN  TREATIES 

Neither  party  to  the  treaty  received  it  with  great  favor. 
In  Japan  it  tended  to  draw  the  issues  more  sharply  between 
the  supporters  of  the  Shogun  and  those  of  the  Mikado.  In 
the  United  States  the  business  men  felt  disappointed.  They 
had  already  in  1852  estimated  the  direct  annual  trade  at 
$200,000,000. l  And  Edward  Everett  Hale  noted  facetiously 
that  a  filibustering  expedition  in  the  Gulf  of  Mexico  awakened 
far  more  interest  among  the  people  than  did  the  opening  by 
peaceful  diplomacy  of  an  empire  in  the  Far  East  to  the  inter- 
course of  the  world.2 

The  British  appreciated  quickly  the  importance  of  Perry's 
treaty  and  sent  Admiral  Sir  James  Stirling  with  a  squadron  of 
four  vessels  to  obtain  a  similar  pact.  He  reached  Nagasaki  on 
September  7,  1854;  and,  no  doubt,  Great  Britain's  war  with 
Russia  at  the  time  helped  him.  The  ports  specified  were  Nag- 
asaki and  Hakodate.  Like  a  good  Englishman  he  obtained 
the  concession  that  if  British  officers  violated  Japanese  law  on 
shore  the  port  might  be  closed  to  them  and  if  British  sailors 
committed  such  violations  they  were  to  be  turned  over  to  the 
commander  of  their  vessel  for  punishment.  This  constituted  a 
kind  of  extraterritorial  jurisdiction.  The  convention  bore  the 
date  of  October  14,  1854.  Two  months  later,  the  Russian 
admiral,  Pontiatine,  appeared  and  obtained  the  treaty  of  Febru- 
ary 7,  1855.  It  resembled  Perry's.  Three  ports  were  opened, 
Nagasaki  being  the  third.  And  the  principle  of  extraterritorial- 
ity was  fully  recognized.  The  treaty  had  a  boundary  provision 
in  it  as  well.  The  Dutch  entered  into  negotiations  for  enlarged 
privileges.  Theirs  was  an  elaborate  document,  dated  January 
30,  1856.  It  had  to  provide  for  a  cancellation  of  the  restrictions 
which  the  Dutch  had  labored  under  for  centuries.  And  they 
obtained  some  slight  trading  concessions  which  by  the  most 
favored  nation  clause  inured  to  the  United  States  also.  A 
French  vessel  appeared  in  February,  1855,  at  Shimoda;  but 
it  was  turned  away,  because  Japan  had  no  treaty  with 
France. 

»De  Bow's  Review,  XIII.:  561. 
*  North  American  Review,  83:   236. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          241 

The  United  States  permitted  the  lapse  of  only  sixteen  months, 
instead  of  eighteen  as  specified  in  Article  XI  of  the  treaty,  before 
Townsend  Harris  was  appointed  consul-general  to  reside  at 
Shimoda,  July  31, 1855.  He  came  of  a  New  England  family  that 
had  emigrated  to  New  York  long  before  the  Revolution  occurred. 
Burgoyne  had  burned  the  home  of  his  grandmother,  Thankful 
Townsend  Harris.  And  she  taught  him  "to  tell  the  truth, 
fear  God,  and  hate  the  British. "  As  a  young  man  he  set  up  in 
the  china  and  crockery  business  in  New  York  City.  He  had 
traveled  as  a  supercargo  to  the  Far  East  and  had  become  ac- 
quainted with  oriental  manners.  He  had  also  found  time  to  ac- 
quire a  mastery  of  the  French,  Spanish,  and  Italian  languages, 
and  to  serve  as  one  of  the  founders  of  the  Free  Academy,  which 
grew  later  into  the  College  of  the  City  of  New  York.  He  was  a 
personal  friend  of  Marcy  and  of  Seward.  On  the  way  to  his 
destination  he  negotiated  a  treaty  with  Siam,  based  on  the 
British  treaty  of  April  18,  1855.  Not  until  August  21,  1856,  did 
he  reach  Shimoda.  The  Japanese  made  a  good  impression  upon 
him,  for  the  last  sentence  of  the  entry  in  his  journal  for  August 
25  runs,  "I  repeat  they  are  superior  to  any  people  east  of  the 
Cape  of  Good  Hope."1 

They  would  rather  Harris  had  not  come.  Shimoda  had  not, 
they  said,  recovered  from  the  disastrous  earthquake  of  the  year 
before;  they  had  no  place  ready;  could  he  not  go  away  and  come 
again  another  year.  He  and  they  agreed  finally  upon  a  tempor- 
ary residence.  Japanese  officers  lived  in  the  house  with  him. 
To  this  surveillance  he  protested,  and  they  were  removed. 
He  had  to  exercise  great  patience  and  endurance  with  the  officials 
in  the  matter  of  social  courtesies,  securing  written  replies  to  his 
communications,  proper  recognition  of  the  value  of  American 
money;  but  friendly  relations  grew  steadily.  His  disappoint- 
ments he  confided  to  his  diary.  "They  are  the  greatest  liars  on 
earth  "  he  concluded  on  January  8, 1857. 

Harris'  chief  purpose  was  to  obtain  a  commercial  treaty. 
He  succeeded  in  securing  considerable  concessions  by  June, 
1857;  which,  in  order  to  clinch,  he  incorporated  into  the  form 
1  Griffis,  Townsend  Harris:  42. 


242  LEADING  AMERICAN  TREATIES 

of  a  convention  and  signed  together  with  the  Japanese  commis- 
sioners under  due  formalities  on  June  17.  He  summarized  the 
main  provisions  in  his  journal,  i.  Nagasaki  opened  to  American 
ships.  2.  Permanent  residence  granted  to  Americans  at  Shimoda 
and  Hakodate.  3.  American  currency  was  given  approximately 
three  times  the  value  it  formerly  had.  4.  Americans  were  to  be 
tried  by  their  own  law  in  American  consular  courts.  5.  The 
consul-general  could  go  wherever  he  pleased  in  Japan.1  The 
fact  that  under  Article  II  missionaries  could  come  and  reside 
permanently  pleased  Harris  immensely.  He  wrote  further  in  his 
journal  that  day.  "Ami  elated  by  this  success?  Not  a  whit;  I 
know  my  dear  countrymen  but  too  well  to  expect  any  praise  for 
what  I  have  done,  and  I  shall  esteem  myself  lucky  if  I  am  not 
removed  from  office;  not  for  what  I  have  done,  but  because  I 
have  not  made  a  commercial  treaty  that  would  open  Japan  as 
freely  as  England  is  open  to  us. " 

He  continued  to  preach  the  good  will  of  the  United  States 
and  by  contrast  pointed  to  the  attitude  of  Great  Britain,  Russia, 
and  France  in  their  dealings  with  China  and  in  their  attitude 
toward  Japan.  He  argued  that  Japan  would  set  a  good  example 
before  the  world  by  entering  freely  into  a  liberal  commercial 
treaty  with  him,  while  unattended  by  fleets  or  soldiers.  Such 
action  would  prove  to  the  other  powers  that  a  display  of  force 
was  unnecessary  in  Japan.  He  presented  these  arguments 
skilfully  in  person  before  Lord  Hotta  at  the  Foreign  Office. 
He  outlined  a  treaty  in  which  he  asked  for  the  unrestricted  priv- 
ilege of  trade  and  pointed  to  the  manner  in  which  Great  Britain 
had  conducted  the  Opium  War  in  China  and  quoted  from  Sir 
John  Bowring  to  the  effect  that  Great  Britain  could  tolerate  no 
longer  the  condition  of  affairs  in  Japan.  He  asked  also  for  the 
right  to  have  an  American  minister  in  Japan.2 

After  months  of  coaxing,  cajolery,  and  anxiety,  he  and  the 
Japanese  commissioners,  Inouye,  Lord  of  Shinano,  and  Iwase, 
Lord  of  Higo,  agreed  on  a  draft  of  a  treaty,  February  26,  1858. 
The  Japanese  asked  for  approximately  two  months,  until  April 

1  Griffis,  Tavmsend  Harris:  160.    Compare  Malloy,  Treaties,  etc.,  I.:  998. 
1  Griffis,    Townsend  Harris:   Chapter   13. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          243 

21,  in  which  to  discuss  the  treaty  among  themselves  and  attempt 
to  harmonize  various  factions  before  they  would  sign.  Harris 
returned  to  Shimoda  where  he  suffered  an  attack  of  "nervous 
fever. "  The  Emperor  and  his  councillors  expressed  the  deepest 
sympathy.  His  Majesty  sent  him  two  of  his  best  physicians, 
daily  messages  of  cheer,  and  presents  of  fruit,  arrowroot,  and  so 
on.  Harris  returned  to  Yedo  by  April  2  for  the  signing;  but 
Lord  Hotta  had  been  unable  to  obtain  the  support  of  the  various 
factions  for  the  treaty;  nor  was  he  able  to  do  so  by  June  i. 
Harris  agreed  to  give  them  until  September  4,  1858,  on  the 
condition  that  the  Japanese  would  refrain  from  entering  into  any 
kind  of  treaty  with  another  foreign  power  until  thirty  days 
after  the  American  treaty  had  been  signed.  The  treaty  bore  the 
date  of  July  29,  1858. 

The  treaty  contained  fourteen  articles  with  seven  regulations 
appended.  Article  I  granted  a  reciprocal  right  to  each  party 
to  maintain  a  diplomatic  agent  in  the  capital  of  the  other. 
American  consuls  could  reside  in  the  ports  of  Japan  opened  to 
American  commerce.  Japanese  consuls  could  reside  in  any  or  all 
ports  of  the  United  States.  Reciprocal  freedom  of  travel  for 
diplomats  and  consuls  was  included. 

By  Article  II  the  President  agreed  to  act  as  a  mediator 
between  Japan  and  any  European  power  whenever  requested  by 
Japan.  American  ships  of  war  should  extend  friendly  assistance 
to  all  Japanese  vessels  upon  the  high  seas,  so  far  as  laws  of  neu- 
trality would  permit.  And  American  consuls  throughout  the 
world  should  give  friendly  aid  to  Japanese  vessels. 

Article  III  opened  the  following  ports  in  addition  to  Shimoda 
and  Hakodate,  Kanagawa  and  Nagasaki  on  July  4,  1859, 
Niigata  on  January  i,  1860,  and  Hiogo  on  January  i,  1863.  Six 
months  after  the  opening  of  Kanagawa  the  port  of  Shimoda 
should  be  closed  as  a  place  of  residence  and  trade.  This  was 
at  the  instance  of  Harris,  for  the  harbor  of  Shimoda  had  proved 
ill  protected.  In  all  of  these  ports  American  citizens  might 
reside  permanently.  They  could  lease  land,  purchase  the  build- 
ings thereon,  and  erect  dwellings  and  warehouses.  This  clause 
furnished  the  basis  for  the  only  arbitration  to  which  Japan  has 


244  LEADING  AMERICAN  TREATIES 

become  a  party.1  No  fortifications  could  be  erected,  and  the 
right  of  inspection  was  reserved.  Japan  agreed  to  place  no 
restrictions  on  the  free  ingress  or  egress  of  Americans  to  their 
places  of  business  or  abode.  Yedo  and  Osaka  were  opened  to 
residence  only  for  American  traders.  Americans  might  freely  buy 
from  and  sell  to  the  Japanese  directly,  without  the  intervention 
of  Japanese  officers  as  heretofore.  But  munitions  of  war  could 
be  sold  to  the  Japanese  government  and  to  foreigners  only.  No 
rice  or  wheat  could  be  exported  as  cargo  from  Japan;  this  per- 
mitted of  buying  sufficient  provisions  for  a  ship's  crew.  Copper 
was  apparently  mined  on  government  account;  for  it  was  stipu- 
lated that  the  government  should  sell  the  surplus  at  public 
auction.  Harris  had  had  difficulty  in  obtaining  Japanese  ser- 
vants; so  he  inserted  a  provision  that  Americans  should  have  the 
right  to  employ  them. 

By  Article  IV  duties  on  imports  and  exports  should  be  paid 
in  accordance  with  the  tariff  appended.  Harris  attempted 
to  secure  the  cancellation  of  export  duties  but  without  success. 
If  the  Japanese  customs  officers  should  be  dissatisfied  with  the 
value  of  an  article  placed  by  the  owner,  they  might  fix  the  value 
with  the  understanding  that  if  the  owner  objected  they  could 
purchase  the  goods  at  the  valuation  fixed.  The  United  States 
obtained  the  privilege  of  landing  and  keeping  naval  stores  at 
three  ports  without  payment  of  duty.  The  importation  of  opium 
was  forbidden;  and  if  an  American  vessel  had  more  than  four 
pounds  avoirdupois  onboard,  the  Japanese  customs  officers  could 
destroy  the  excess.  This  salutary  provision  had  been  first  inserted 
in  the  Dutch  treaty.  On  goods  imported  under  the  treaty, 
the  Japanese  could  levy  no  excise  or  transit  duties.  This  was  a 
wise  provision  which  it  would  have  been  well  for  the  English  to 
have  inserted  in  the  Chinese  treaty.  No  higher  duties  were  to 
be  levied  than  those  specified  in  the  tariff,  nor  higher  than  those 
on  goods  imported  in  Japanese  vessels  or  hi  the  vessels  of  any 
other  nation. 

Article  V  permitted  coins  of  all  description,  except  Japanese 
copper  coins,  to  be  exported  from  Japan.  Moreover,  foreign  coin 

1  See  Japanese  House  Tax  Arbitration,  Wilson,  The  Hague  Cases:  46. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          245 

should  pass  freely  in  Japan  for  the  corresponding  weight  of 
similar  Japanese  coins.  This  provision  virtually  drained  Japan 
of  her  own  coins  and  made  difficult  the  detection  of  counterfeit 
in  f oreignj^ris.  This  article  was  amended  by  Article  VI  of  the 
convention  of  June  25,  1866,  which  restored  to  Japan  her  own 
coinage^ 

Article  VI  established  American  consular  courts  which  were 
to  administer  American  law.  Americans  charged  with  criminal 
offenses  should  be  there  tried.  Japanese  charged  with  offenses 
against  Americans  should  be  tried  in  Japanese  courts.  The 
consular  courts  were  to  be  open  to  Japanese  creditors  for  the 
recovery  of  claims  against  Americans  and  reciprocally  the  Jap- 
anese courts  to  American  creditors  of  the  Japanese.  Neither 
government  was  to  be  held  responsible  for  the  payment  of  debts 
contracted  by  its  citizens. 

Article  VII  defined  the  limits  within  which,  at  the  various 
ports,  Americans  might  travel  and  the  penalties,  usually  expul- 
sion, for  violation. 

Article  VIII  granted  to  Americans  the  freedom  of  religious 
worship  and  the  right  to  erect  suitable  places  for  worship.  Har- 
ris took  great  pride  in  this  article,  for  it  permitted  the  residence  of 
American  missionaries.  The  freedom  of  worship  had  been 
inserted  in  the  Dutch  treaty;  but  the  right  to  build  churches  was 
an  addition. 

Article  IX  provided  for  the  arrest  and  the  return  to  the  consul 
by  the  Japanese  of  American  deserters  and  fugitives  from 
justice.  For  such  services  the  consul  was  to  pay  a  just  compen- 
sation. 

Under  Article  X  Japan  should  have  the  privilege,  so  far  as 
neutrality  laws  would  permit,  of  obtaining  by  purchase  or 
construction  ships  of  war,  merchant  vessels,  munitions,  and  of 
securing  the  services  of  experts. 

Article  XI  stipulated  that  the  regulations  added  to  the  treaty 
should  have  the  same  binding  effect  as  the  treaty. 

Article  XII  revoked  the  conflicting  clauses  in  the  treaties  of 
1854  and  1857. 

Article  XIII  provided  that  after  July  4,  1872,  either  party 


246  LEADING  AMERICAN  TREATIES 

could  give  one  year's  notice  of  a  desire  for  a  revision  of  the 
treaty.  Harris'  intent  was,  and  no  doubt  that  of  the  Japanese, 
that  in  fourteen  years  time  permission  should  be  granted  to 
either  party  to  profit  by  experience.  But  in  1866  and  in  1872  the 
Japanese  found  themselves  greatly  restricted  by  the  operations 
of  the  most  favored  nation  clause.  The  consent  of  all  the 
treaty  powers  had  to  be  obtained.  This  was  accomplished  only 
by  1894,  becoming  effective  in  1899. 

Article  XIV  stipulated  that  the  treaty  should  become  effective 
on  July  4,  1859;  that  the  ratifications  should  be  exchanged  at 
Washington;  that  the  treaty  should  be  executed  in  quadruple 
and  that  each  copy  should  be  written  in  the  English,  Japanese, 
and  Dutch  languages  of  which  the  Dutch  should  be  considered 
the  original. 

The  regulations  appended  to  the  treaty  were  more  liberal 
than  any  before  granted.  Tonnage  duties  were  eliminated. 
Penalties  were  reduced.  But  on  the  whole  they  were  based  on 
the  regulations  which  the  Dutch  had  previously  obtained. 

The  seventh  regulation  contained  the  tariff  provisions.  Under 
the  Dutch  and  Russian  treaties  of  1857,  the  import  duties 
had  been  fixed  temporarily  at  35  per  cent,  ad  valorem.  Harris 
obtained  rather  quickly  a  reduction  to  12^  per  cent,  ad  valorem 
on  both  imports  and  exports;  but  he  wanted  a  complete  abolition 
of  export  duties.  One  of  the  last  features  of  the  negotiation 
consisted  in  the  agreement  on  the  seventh  regulation.  Class  i 
included  free  imports,  gold  and  silver,  coined  and  uncoined; 
wearing  apparel  in  actual  use;  household  furniture  and  books, 
the  property  of  persons  who  came  to  reside  in  Japan,  and  which 
was  not  for  sale. 

Class  2  included  imports  with  a  5  per  cent,  duty;  ship-repairing 
materials,  salted  provisions,  breadstuffs,  live  animals,  coal,  rice, 
paddy,  steam  machinery,  zinc,  lead,  tin,  raw  silk. 

Class  3  included  imports  with  a  35  per  cent,  duty;  all  kinds  of 
intoxicating  liquors. 

Class  4  included  unenumerated  imports  with  a  duty  of  20  per 
cent. 

The  last  class  included  all  articles  of  Japanese  production 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          247 

exported  as  cargo,  and  these  were  to  pay  5  per  cent.,  except  gold 
and  silver  coin  and  copper  in  bars,  which  should  be  free.1 

Townsend  Harris  had  won  a  great  diplomatic  victory.  He 
wrote  to  a  friend:  "The  pleasure  I  feel  in  having  made  the  treaty 
is  enhanced  by  the  reflection  that  there  has  been  no  show  of 
coercion,  nor  was  menace  in  the  least  used  by  me  to  obtain  it. 
There  was  no  American  man  of  war  within  one  thousand  miles 
of  me  for  months  before  and  after  the  negotiations.  I  told  the 
Japanese  at  the  outset  that  my  mission  was  a  friendly  one; 
that  I  was  not  authorized  to  use  any  threats;  that  all  I  wished 
was  that  they  would  listen  to  the  truth  that  I  would  lay  before 
them."2 

The  Japanese  did  not  wait  thirty  days  after  the  signature  of 
the  American  treaty  before  they  entered  into  treaties  with 
other  powers;  and,  in  all  likelihood,  Harris  absolved  them  from 
this  promise.  The  Dutch  signed  a  treaty  with  Japan  on  August 
1 8,  1858;  Russia  on  August  19;  Great  Britain  on  August  26; 
and  France  on  October  7,  1858.  All  of  them  used  the  Harris 
Treaty  as  a  basis.  Lord  Elgin  obtained  two  modifications  for 
Great  Britain.  The  British  treaty  should  become  effective  on 
July  i  instead  of  July  4,  1859;  so  that  this  treaty  had  the  honor 
of  being  the  first  to  become  effective;  and  the  change  in  date 
removed  an  unpleasant  reminder  of  what  July  4  meant  to  an 
Englishman.  The  other  modification  consisted  in  the  shifting 
of  woolen  and  cotton  goods  from  the  class  paying  20  per  cent, 
duty  to  the  class  that  paid  5  per  cent.  duty.  Baron  Gros  tried  to 
secure  a  reduction  for  France  in  the  duties  on  wines.  The 
Japanese  replied  that  if  they  realized  a  need  for  the  wines  they 
would  revise  the  schedule  five  years  later.  The  most  favored 
nation  clause  extended  the  reductions  on  woolen  and  cotton 
goods  to  the  United  States  as  well. 

The  distinguished  Japanese  scholar,  Inazo  Nitobe,  estimates 
the  work  of  Perry  and  of  Harris  as  follows:  "The  expedition  of 
Perry  was  heralded  with  a  loud  blare  of  trumpets,  while  the 
coming  of  Harris  was  attended  with  no  demonstration.  Four 

1Malloy,  Treaties,  etc.,  I.:  1000. 

2  Letter  in  Living  Age,  February,  1859:  572. 


248  LEADING  AMERICAN  TREATIES 

thick  quarto  volumes  made  known  to  the  world  the  minutest 
details  of  Perry's  expedition,  while  Harris  even  forbade  the 
publication  of  his  papers,  until  twenty-five  years  after  his  de- 
cease. "  "  Thus  has  it  always  been.  An  oak  falls  noisily  crashing 
through  the  forest;  the  acorns  drop  with  scarce  a  sound.  To 
generations  after  the  acorns  prove  the  greater  blessing."  1 

When  Harris  obtained  the  consent  of  the  Japanese  to  have  the 
ratifications  exchanged  in  Washington  he  secured  therewith 
the  acceptance  of  an  invitation  to  send  their  first  diplomatic 
mission.  Owing  partly  to  internal  differences  in  Japan  and  to 
the  delay  of  the  United  States  in  furnishing  transportation, 
which  had  been  arranged  for  through  diplomatic  channels,  the 
going  into  effect  of  the  treaty  was  postponed  for  almost  a  year. 
The  embassy  consisted  of  eighteen  persons  of  rank,  two  with  the 
rank  of  envoys,  and  fifty-three  servants.  Flag-officer  Josiah 
Tattarall  of  the  U.  S.  S.  "Powhatan"  regretted  the  number  of 
servants;  and  the  officials  he  had  to  stow  away  two  and  three  in  a 
state  room.2  The  mission  traveled  by  way  of  Panama,  reached 
Washington,  was  properly  entertained,  and  exchanged  the  rati- 
fications on  May  22,  1860.  On  the  next  day  the  President 
proclaimed  the  treaty. 

A  slight  reduction  in  the  import  duties  was  arranged  in  1864. 
A  revision  of  duties  took  place  in  1866,  together  with  an  amend- 
ment of  Article  V  of  Harris'  Treaty  affecting  Japanese  coin.  The 
Treaty  of  1878  contained  further  modifications.  It  abolished 
discriminatory  duties  in  Japan  on  American  imports  or  exports 
and  cancelled  the  Japanese  export  duties.  The  regulation  of  the 
coasting  trade  was  reserved  to  Japan.  All  fines  imposed  and 
collected  by  the  American  consular  courts  for  violation  of  trea- 
ties should  be  turned  over  to  the  Japanese  authorities.  And 
Article  V  of  the  Harris'  Treaty,  1858,  was  cancelled.  In  1886 
an  extradition  treaty  was  negotiated.  And  in  1894  the  two 
countries  negotiated  a  treaty,  effective  July  17,  1899,  revising 
completely  the  commercial  relations  between  them.  By  Article 
XVIII,  that  treaty  superseded  the  Perry  Treaty  of  1854  and  the 

1  Nitobc,  Intercourse  between  the  United  Stales  and  Japan:  116. 
•Sen.  I>oc.  25,  36  Cong.,  i  sess.,  12. 


PERRY  AND  HARRIS  TREATIES  WITH  JAPAN          249 

Harris  Treaty  of  1858  and,  in  consequence,  abolished  the  judicial 
functions  of  American  consuls  in  Japan.1 

BIBLIOGRAPHY. 

FOSTER,  JOHN  W. — American  Diplomacy  in  the  Orient.    Boston,  1003. 

GRIFFIS,  W.  E. — Life  of  Townsend  Harris,  Boston,  1895. 

GRIFFIS,  W.  E.— Matthew  C.  Perry.     Boston,   1887. 

HARRIS,  TOWNSEND. — Journal.  (The  major  part  is  found  in  Griffis'  Town- 
send  Harris.)  (Typewritten  transcript  from  the  original  manuscript 
is  in  the  Library  of  Congress). 

HAWKS,  F.  L. — Narrative  of  the  Expedition  of  an  American  Squadron  to 
the  China  Seas  and  Japan.  Sen.  Doc.  79,  33  Cong.,  2  sess.  Washing- 
ton, 1856. 

Littell's  Living  Age,  1859.    New  York. 

NITOBE,  INAZO.  Intercourse  between  the  United  States  and  Japan.  J.  H.  U. 
Studies  in  History  and  Political  Science,  extra  volume  number  8. 
Baltimore,  1891. 

PAULLIN,  C.  O.  Diplomatic  Negotiations  of  American  Naval  Officers,  1778- 
1883.  Baltimore,  1912. 

Sen.  Ex.  Doc.  25,  36  Cong.,  i  session.    (Serial  No.  1031).    Washington,  1860. 

Sen.  Ex.  Doc.  34,  33  Cong.,  2  sess.    (Serial  No.  751).    Washington,  1855. 

TREAT,  PAYSON  J. — The  Early  Diplomatic  Relations  between  the  United 
States  and  Japan,  1853-1865.  Baltimore,  1917. 

WILLIAMS,  S.  WELLS. — Journal  of  the  Perry  Expedition  to  Japan  (in  Trans- 
actions of  the  Asiatic  Society  of  Japan,  Volume  37,  part  H).  Yokohama, 
1910. 

lSee  Malloy,  Treaties,  etc.,  I.:  1028. 


CHAPTER  XII 
THE  ALASKA  PURCHASE,   1867 

"International  law,  properly  so-called,  is  only  so  much  of  the  principles 
of  morality  and  justice  as  the  nations  have  agreed  shall  be  part  of  those 
rules  of  conduct  which  shall  govern  their  relations  one  with  another." — 
SIR  CHARLES  RUSSELL. 

Alaska  fails  to  comprise  an  area  as  large  as  the  Louisiana 
Purchase;  nevertheless,  its  extent  is  significant.  The  New  Eng- 
land states,  New  York,  New  Jersey,  Delaware,  Maryland, 
Pennsylvania,  the  five  great  states  in  the  old  Northwest  Terri- 
tory, Minnesota,  Iowa,  and  one-half  of  Missouri  could  be  placed 
within  the  confines  of  Alaska.  The  known  resources  in  fish, 
copper,  gold,  silver,  other  minerals,  fur-bearing  animals,  and 
forests  are  large;  and  the  prospective  resources  are  im- 
mense. 

Vitus  Bering  explored  the  St.  Elias  region  for  Russia  in  1741. 
The  survivors  of  his  expedition  brought  back  with  them  tales  of 
wealth  to  be  made  in  furs.  Numerous  fur  trading  companies 
were  organized.  By  an  imperial  ukase  of  August  1 1,  1799,  these 
were  either  eliminated  or  merged  in  the  Russian  American  Com- 
pany. In  this  ukase  Paul  I  stated:  "The  benefits  and  advan- 
tages resulting  to  our  empire  from  the  hunting  and  trading 
carried  on  by  our  loyal  subjects  in  the  northeastern  seas  and 
along  the  coasts  of  America  have  attracted  our  royal  attention 
and  consideration;  therefore,  having  taken  under  our  immediate 
protection  a  company  organized  for  the  above  named  purpose  of 
carrying  on  hunting  and  trading,  we  allow  it  to  assume  the  ap- 
pellation of  "Russian  American  Company;"  and  for  the  pur- 
poses of  aiding  the  company  in  its  enterprises,  we  allow  the 
commanders  of  our  land  and  sea  forces  to  employ  said  forces  in 
the  company's  aid  if  occasion  requires  it,  while  for  further 
relief  and  assistance  of  said  company,  and  having  examined 
their  rules  and  regulations,  we  hereby  declare  it  to  be  our  highest 

250 


THE  ALASKA  PURCHASE,   1867  251 

imperial  will  to  grant  to  this  company  for  a  period  of  twenty 
years  the  following  rights  and  privileges. " 

i.  The  fifty-fifth  degree  of  north  latitude  was  taken  as  the 
starting  point.  From  there  the  rights  of  the  company  extended 
to  the  exclusive  use  of  the  coasts  of  America  north  and  south  of 
that  line  and  of  the  "Aleutian,  Kurile,  and  other  islands  situated 
in  the  northeastern  ocean."  2.  All  new  discoveries  north  and 
south  of  this  line  made  by  the  company  could  be  occupied  as 
Russian  possessions,  "if  they  had  not  been  previously  occupied 
by  any  other  nation."  3.  The  company  could  "use  and  profit 
by  everything  which  has  been  or  shall  be  discovered  in  those 
localities,  on  the  surface  and  in  the  bosom  of  the  earth,  without 
any  competition  by  others."  4.  The  company  could  establish 
settlements  and  fortify  them.  5.  It  might  enjoy  freedom  of 
navigation  and  commerce  with  "all  surrounding  powers."  6. 
It  could  employ  for  hunting,  navigation,  and  trade  any  free 
person  and  also  serfs  and  house-servants  with  the  consent  of 
their  land  holders.  7.  Government  timber  might  be  cut.  8. 
The  company  could  buy  powder  and  lead  at  the  government 
magazines  at  cost  price.  9.  A  partner's  share  in  the  company 
could  not  be  seized  for  debt.  10.  The  rights  of  the  company 
were  made  a  monopoly,  n.  Paul  conferred  judicial  powers  in 
minor  cases  upon  the  company.1 

Investors  in  St.  Petersburg  absorbed  quickly  the  capital 
stock  of  1,238,740  rubles.  The  Czar,  the  Czarina,  and  the 
Grand  Duke  Constantine  subscribed  for  large  sums,  and  direct- 
ed that  the  dividends  should  be  devoted  to  charity.  During  the 
first  twenty  year  period  of  the  company  the  net  earnings  were 
7,685,608  rubles.  Of  this  amount  4,250,000  rubles  were  distri- 
buted as  dividends  and  the  remainder  was  added  to  the  capital. 

The  ukase  mentioned  nothing  on  the  treatment  of  the  natives. 
Nor  would  any  philanthropic  stipulations  have  been  observed 
if  they  had  been  inserted.  Baronof's  rule  during  the  first 
eighteen  years  of  the  century  tolerated  the  work  of  missionaries 
insofar  as  they  promoted  peace  and  respect  for  his  authority 
among  the  natives;  but  his  chief  function  consisted  in  obtaining 
1H.  H.  Bancroft,  History  of  Alaska:  379. 


252  LEADING  AMERICAN  TREATIES 

furs  from  the  natives  and  in  stimulating  them  to  bring  larger 
quantities.  His  methods  did  not  differ  essentially  from  those  of 
Cortez,  Alvarado,  and  Pizarro  in  an  earlier  day  in  other  sections 
of  the  Cordillera.  Indeed,  a  cargo  of  furs  enriched  the  owner  in 
Russia  as  much  as  a  cargo  of  the  precious  metals  the  owners  in 
Spain.  Successful  frontiersmen  in  such  regions  place  small 
value  upon  their  own  lives  and  less  upon  the  lives  of  others.  The 
Russians  in  Alaska  had  no  fear  of  punishment.  They  could 
commit  robbery,  rape,  and  murder  with  impunity,  for,  to  use 
their  own  phrase,  "  God  is  high  above  and  the  Czar  is  far  away. " 

Fortunately  for  the  progress  of  civilization,  business  must 
conform  to  moral  standards  or  perish  by  the  wayside,  as  did 
piracy,  slavery;  and  as  have  several  of  the  colonial  trading 
companies.  The  Hudson  Bay  Company  has  kept  step  with 
progress  and  consequently  enjoys  still  great  prosperity.  The 
Russian  American  Company  founded  settlements  at  Yakutat 
Bay  and  Sitka;  kept  up  those  at  Unalaska  and  Kodiak;  took  a 
census  of  the  fur  seals  which  led  to  a  conservation  of  the  herd; 
made  surveys  of  the  seacoast;  started  ship  building  projects; 
kept  watch  on  Astor's  enterprise  on  the  Columbia  River;  warned 
off  American  expeditions  to  Alaska,  which,  in  some  instances, 
were  successful  in  obtaining  cargoes  of  fur  from  the  Indians  at 
higher  prices  than  the  Russians  offered;  and  established  farming 
communities  on  the  California  coast  to  supplement  the  insecure 
and  hazardous  supply  of  foodstuffs  from  St.  Petersburg,  such  as 
wheat,  potatoes,  vegetables,  some  fruit,  beef  and  hides.  This 
gradual  occupation  and  claim  to  the  whole  of  the  Pacific  coast 
from  San  Francisco  northward  furnished  the  administration  at 
Washington  with  one  of  the  motives  for  the  Monroe  Doctrine. 

The  Russian  American  Company  came  in  conflict  with  the 
claims  of  the  Hudson  Bay  Company,  of  Astor's  company,  and 
with  the  rights  of  Spain.  Spain  refused  to  sell  the  Russians  any 
tracts  of  land;  and  such  as  they  held  rested  on  titles  acquired 
from  the  Indians  only.  The  Russian  company  could  obtain  no 
favorable  intervention  with  the  authorities  at  Madrid  through 
the  offices  of  the  home  government  at  St.  Petersburg.  This 
compelled  the  company  to  offer  for  sale  its  entire  California 


THE  ALASKA  PURCHASE,  1867  253 

property  at  Ross  and  Bodega  to  the  Hudson  Bay  Company;  but 
no  agreement  could  be  reached.  They  offered  it  next  to  General 
Vallejo;  and  he  refused  to  buy.  Finally,  in  September,  1841, 
they  reached  an  agreement  with  John  A.  Sutter.  They  turned 
over  to  him  all  improvements,  implements,  1700  head  of  cattle, 
940  horses,  and  900  sheep  for  $3o,ooo.1 

At  the  end  of  its  first  twenty  year  period  the  company  ap- 
plied for  a  renewal  of  its  exclusive  privileges.  This  was  provided 
for  in  the  imperial  ukase  of  September,  1821.  The  limits  of  the 
jurisdiction  of  the  company  over  the  Pacific  coast  of  America  had 
become  more  definite.  The  southern  extremity  rested  on  lati- 
tude fifty-one  degrees  north,  or  the  northern  cape  of  Vancouver 
Island  and  stretched  to  Bering  Strait  and  beyond.  The  company 
could  exercise  exclusive  jurisdiction  over  a  belt  of  the  marginal 
sea  one  hundred  miles  wide.  The  manager  was  placed  on  the 
same  official  footing  as  the  governors  of  the  Siberian  provinces. 
Government  officials,  including  those  in  the  army  and  the  navy, 
could  enter  the  service  of  the  company  on  half  pay  and  without 
losing  their  turn  for  promotion.  All  servants  of  the  company 
were  exempted  from  conscription.  Attempts  were  made  to 
safeguard  against  abuse  and  injustice.  If  the  company's  shares 
should  fall  fifty  per  cent,  in  value,  the  government  would  assume 
the  loss,  and  might  sell  the  shares  at  auction.2 

Diplomatic  difficulties  arose  with  Great  Britain  and  with 
the  United  States,  due  to  the  protests  of  British  and  American 
traders.  The  United  States  reached  an  agreement  first,  1824; 
Henry  Middleton  acted  as  negotiator  and  Nesselrode  and  Pole- 
tica  for  Russia.  Article  I  provided  for  the  freedom  of  navigation 
and  fishing  upon  the  Pacific  Ocean  and  for  the  freedom  to  resort 
to  the  unoccupied  coasts  for  the  purpose  of  trading  with  the 
natives.  The  interpretation  of  this  article  came  up  in  the  later 
fur  seals  arbitration.  By  Article  III  the  United  States  agreed 
that  none  of  its  citizens  should  form  any  establishment  north  of 
54°  40'  north  latitude  and  Russia  agreed  that  no  Russians  should 
form  any  establishment  south  of  that  point.  The  two  parties 

1 H.  H.  Bancroft,  History  of  Alaska:  489. 
"Ibid.:  531. 


254  LEADING  AMERICAN  TREATIES 

agreed  reciprocally  not  to  furnish  the  natives  north  or  south  of 
54°  40'  with  spirituous  liquors,  fire-arms,  powder,  or  any  muni- 
tions of  war  or  to  permit  their  respective  citizens  or  subjects  to 
do  so.  Each  party  reserved  to  itself  the  right  to  punish  its  own 
citizens  or  subjects  committing  such  offenses;  and  there  was  to  be 
no  search  or  detention  of  vessels  on  account  of  such  offenses.1 

The  same  Russian  commissioners  negotiated  a  convention 
with  Great  Britain,  1825;  Lord  Stratford  Canning  representing 
Great  Britain.  The  third  and  fourth  articles  described  the 
boundary  between  the  British  North  American  possessions  and 
those  of  Russia.  This  was  afterward  inserted  in  Article  I  of  the 
treaty  ceding  Alaska  to  the  United  States  and  became  the  basis 
for  the  Alaska  boundary  arbitration,  1903,  which  will  be  de- 
scribed later.  Article  X  provided  for  the  reciprocal  right  of 
British  and  Russian  ships  in  distress  to  enter  any  harbor  for 
repairs  and  provisions,  without  payment  of  duty  or  port  charges. 
Otherwise  the  treaty  contained  substantially  the  same  provi- 
sions as  the  American. 

The  news  of  the  treaties  aroused  indignation  and  remon- 
strance on  the  part  of  the  Russian  American  Company.  Its  right 
had  been  violated  by  taking  away  the  exclusive  jurisdiction  over 
the  marginal  sea,  one  hundred  miles  from  the  coast,  and  by 
permitting  foreigners  to  trade  on  the  uninhabited  shores  belonging 
to  the  company.  This  foreboded,  the  representatives  claimed, 
the  ruin  and  the  dissolution  of  the  company.  Czar  Alexander 
paid  no  attention  to  the  complaints;  but  Nicholas  did  make  a 
futile  effort  to  have  the  treaties  cancelled.  The  Hudson  Bay 
Company  gradually  made  serious  inroads  upon  the  former 
monopolies  of  the  Russian  company,  with  the  result  that  the 
yield  of  the  hunting  grounds  was  considerably  less  for  the  second 
period  of  twenty  years  than  the  first  period.  However,  the 
dividends  declared  were  almost  double  those  in  the  first  term; 
in  several  instances  they  were  charged  on  the  earnings  of  future 
years. 

The  charter  was  duly  renewed  for  a  third  term  of  twenty 
years  on  March  5,  1841.  The  boundary  was  changed  in  accord- 
1  Malloy,  Treaties,  etc.,  II.;  1512. 


THE  ALASKA  PURCHASE,  1867  255 

ance  with  the  American  and  British  treaties.  Not  any  of  the 
company's  rights  were  curtailed.  It  was  given  the  monopoly  of 
Russian  trade  with  certain  ports  in  China,  for  example,  all  tea 
going  from  Shanghai  to  St.  Petersburg  had  to  pass  through  the 
company's  hands.  No  liquor  could  be  sold  to  the  natives.  And 
an  order  was  soon  afterward  proclaimed  from  St.  Petersburg 
that  no  liquor  could  be  sold  to  anybody. 

As  soon  as  the  company  felt  the  forebodings  of  the  Crimean 
War,  its  representatives  approached  those  of  the  Hudson  Bay 
Company.  The  two  agreed  to  petition  their  governments  to 
consider  the  regions  occupied  by  these  two  trading  companies  as 
neutral.  Great  Britain  and  Russia  acceded  to  this  request  with 
the  understanding  that  neither  company  should  assist  in  the 
belligerent  actions  of  its  home  government.  And  this  agreement 
was  respected  by  all  the  parties  concerned.  Several  British 
cruisers  visited  the  harbor  of  Sitka;  but  they  found  no  evidence 
of  violation  of  the  agreement  and  they  inflicted  no  damage. 
They  did  bombard  two  ports,  Petropavlosk  and  the  Russian 
settlement  on  Ourup  on  the  Asiatic  coast,  which  were  within  the 
jurisdiction  of  the  Russian  American  Company.  Russia  pro- 
tested; but  Great  Britain  justified  the  attacks  on  the  ground 
that  the  ports  did  not  lie  on  the  northwest  coast  of  America. 
Though  the  Alaskan  settlements  met  with  no  direct  British 
attack,  they  did  suffer  greatly.  As  usual  the  British  patrolled 
the  sea  lanes.  Food  and  clothing  became  scarce,  to  say  nothing 
about  the  inability  to  sell  the  furs  and  the  consequent  lack  of 
power  to  buy  the  products  of  the  hunt  from  the  Indians.  The 
Indians  conducted  raids  on  the  posts  and  even  committed 
massacres. 

American  interest  in  the  Alaskan  fisheries  and  the  fur  trade 
had  been  steadily  growing.  And  during  the  Crimean  War  their 
opportunities  multiplied.  Another  project  assisted  in  stimulat- 
ing American  interest.  Scientists  foresaw  small  hope  of  making 
a  successful  project  of  an  Atlantic  cable.  Several  men,  but 
notably  Major  P.  M.  Collins,  had  played  with  the  idea  of 
constructing  a  land  line  via  Bering  Strait.  Major  Collins  ob- 
tained from  Russia  the  right  to  build  such  a  line  on  through 


256  LEADING  AMERICAN  TREATIES 

Siberia.  He  secured  the  cooperation  of  the  Western  Union 
Telegraph  Company.  The  United  States  instructed  its  minister 
in  St.  Petersburg  to  favor  the  project.  Great  Britain  made  the 
necessary  concessions  through  the  western  part  of  British  Amer- 
ica. And  as  soon  as  Cyrus  Field's  venture  with  the  Atlantic 
cable  failed  in  1858,  the  Western  Union  began  operations  in 
earnest. 

The  American  Civil  War  interrupted  its  efforts;  but  by  the 
latter  part  of  1866,  thousands  of  miles  of  survey  had  been  made, 
the  material  for  the  entire  line  had  been  purchased  and  even 
distributed  at  convenient  points.  The  line  had  been  erected  to 
New  Westminster,  the  capital  of  British  Columbia,  and  850 
miles  of  line  beyond  to  the  banks  of  the  Simpson  River  were 
erected  and  connected.  A  great  deal  of  work  had  been  done 
through  Siberia.  The  Western  Union  felt  certain  that  by  the  end 
of  1867  the  whole  line  would  be  completed.  But  an  unforeseen 
event  occurred.  The  double  success  of  the  "  Great  Eastern  "  in 
1866  in  laying  two  cables  from  Valencia  Bay  to  Heart's  Content 
eliminated  all  need  of  the  Western  Union  Telegraph  Company 
line  by  way  of  Alaska,  Bering  Strait,  and  Siberia.1 

In  1860  the  directors  of  the  Russian  American  Company  had 
submitted  a  revised  draft  of  the  charter  to  be  renewed  for  an- 
other twenty  years.  The  Czar's  government  ordered  an  investi- 
gation of  the  company's  conduct  and  affairs.  Pending  a  report 
the  charter  expired;  and  the  company  continued  to  do  business 
on  the  tolerance  of  the  imperial  will  alone.  As  a  result  of  the 
investigation  the  imperial  council  recommended  in  1865  that  the 
charter  be  renewed  on  two  conditions,  one,  that  all  Aleuts  and 
native  tribes  should  be  exempt  from  involuntary  servitude  and 
that  all  the  inhabitants  of  Russian  America  should  be  permitted 
to  engage  in  whatever  industry  they  pleased;  two,  that  the 
government  should  assume  no  liability  for  the  decrease  in  the 
value  of  the  company's  shares.  The  directors  of  the  company 
failed  to  meet  these  conditions. 

Russia  had  never  taken  formal  possession  of  Alaska;  that 
region  had  not  been  incorporated  or  thought  of  as  a  province 
•Diplomatic  Correspondence,  1867,  Part  I.:  385. 


THE  ALASKA  PURCHASE,   1867  257 

of  the  empire.  The  Czar  had  extended  his  protection  to 
the  traders  there.  Through  an  ukase  he  had  incorporated 
the  Russian  American  Company  in  which  several  members  of  the 
royal  family  were  stockholders;  and  twice  he  had  renewed  the 
charter.  The  Crimean  War  had  made  evident  how  easily  Rus- 
sian America  might  fall  into  the  hands  of  a  hostile  power  and 
how  imminent  the  possibility  was  of  the  British  lion  and  the 
Russian  bear  facing  each  other  on  opposite  shores  of  Bering 
Strait.  Since  the  Russian  American  Company  refused  to  accept 
a  third  renewal  of  its  charter  on  the  conditions  proposed,  would 
it  not  be  wise  to  cede  the  Russian  rights  in  America  to  a  friendly 
power  and  thus  obtain  the  advantages  of  a  buffer  state  and 
place  a  barrier  to  British  expansion? 

The  United  States  had  shown  considerable  interest  in  the 
activities  of  the  Russian  American  Company  as  evidenced  by 
one  principle  in  the  Monroe  Doctrine;  by  the  Treaty  of  1824; 
by  interceding  in  behalf  of  American  fishermen  and  traders,  who 
had  continuously  been  growing  more  numerous;  and  by  assisting  to 
make  smooth  the  course  for  the  project  of  the  Western  Union 
Telegraph  Company.  Moreover,  the  discovery  of  gold  in  Cali- 
fornia had  made  closer  relations  with  Alaska  imperative;  for 
example,  Sanderson  and  Moss  of  San  Francisco  ordered  250  tons 
of  ice  from  Alaska  in  1851  at  $75  a  ton.  And  the  people  of 
Washington  Territory  wanted  the  right  to  take  part  in  the  rich 
salmon,  cod,  and  halibut  fisheries  off  Alaska. 

Senator  William  M.  Gwin  of  California  and  the  Assistant 
Secretary  of  State  broached  the  subject  of  a  purchase  of  Alaska 
to  the  Russian  minister,  Baron  Edward  de  Stoeckl,  in  1859, 
and  mentioned  $5,000,000  as  the  price;  but  nothing  came  of  it.1 
From  1 86 1  on,  the  talk  became  common  among  the  Russians  in 
Alaska  and  the  Americans  interested  in  the  region  that  the 
United  States  would  some  day  acquire  it.  Negotiations  for  the 
adjustment  of  the  rights  of  American  fishermen  and  traders  in 
Alaska  continued.  Indeed,  when  Baron  Stoeckl  left  Washington 
in  the  latter  part  of  1866  for  a  short  visit  to  St.  Petersburg,  he 
promised  to  use  his  efforts  to  obtain  favorable  action  on  the 
1F.  Bancroft,  Life  of  Seward,  II.:  474. 


258  LEADING  AMERICAN  TREATIES 

requests  of  the  State  Department  in  behalf  of  Americans.  And 
it  was  while  in  St.  Petersburg,  February,  1867,  that  Baron 
Stoeckl  received  direct  authority  to  treat  for  the  sale  of  the 
territory. 

As  soon  as  he  arrived  in  Washington  he  opened  informal 
negotiations  with  William  H.  Seward,  an  ardent  expansionist, 
then  Secretary  of  State.  Stoeckl  named  ten  million  dollars  as  a 
reasonable  price;  Seward  bid  five  million.  Then  both  worked 
toward  $7,500,000.  Seward  proved  the  ablest  bargainer;  they 
agreed  on  $7,000,000,  with  the  reservation  by  Stoeckl  that  all 
the  rights  and  properties  of  the  Russian  American  Company 
should  be  respected.  On  March  23,  1867,  Seward  sent  Baron 
Stoeckl  a  message  stipulating  that  the  President  would  pay 
$7,200,000  if  the  cession  of  Alaska  were  made  free  and  unencum- 
bered of  all  reservations,  franchises  or  grants.1  On  March  25, 
1867,  Stoeckl  replied:  "I  believe  myself  authorized,  Mr.  Secre- 
tary of  State,  to  accede  literally  to  this  request  on  the  condi- 
tions indicated  in  your  note."  He  did,  however,  cable  St. 
Petersburg  for  definite  approval.  On  the  evening  of  March 
29, 1867,  the  Russian  minister  called  at  Seward's  home  and  found 
the  Secretary  of  State  engaged  in  his  usual  game  of  whist. 
Stoeckl  reported  the  receipt  of  a  cablegram  giving  the  Czar's 
consent  to  the  cession  and  suggested  that  he  would  be  ready  to 
proceed  with  the  final  touches  the  next  day.  Seward  retorted, 
"Why  wait  till  tomorrow?  Let  us  make  the  treaty  tonight." 
He  sent  out  messengers  to  summon  the  necessary  clerks  for 
immediate  duty  at  the  State  Department.  The  Assistant  Secre- 
tary of  State  called  for  Charles  Sumner,  chairman  of  the  senate 
committee  on  foreign  relations.  Stoeckl  ordered  his  assistants  to 
appear.  By  midnight  the  necessary  parties  and  persons  had 
gathered  at  the  State  Department.  And  by  four  o'clock  in  the 
morning  the  treaty  was  signed.  At  noon  President  Johnson 
sent  the  treaty  to  the  Senate  with  a  message  advising  ratifica- 
tion. 

No  one  expressed  much  opposition  to  the  treaty;  but  a 
great  deal  of  good  natured  raillery  found  expression  both  in  the 
"Diplomatic  Correspondence,  1867,  Part  I.:  399. 


THE  ALASKA  PURCHASE,  1867  259 

newspapers  and  in  the  Senate.  It  was  "Seward's  folly,"  "John- 
son's polar  bear  garden."  It  was  a  bad  bargain  palmed  off  on  a 
silly  administration  by  the  shrewd  Russians.  The  ground  was 
frozen  six  feet  deep;  no  useful  animals  could  live  there.1  But 
Sumner  made  a  thorough  study  of  the  resources  of  Alaska, 
which  he  presented  convincingly  to  the  Senate  on  April  p.2 
The  Senate  advised  ratification  on  the  same  day  by  a  vote  of 
37  to  2,  Fessenden  and  Morrill  constituted  the  minority.  The 
President  ratified  on  May  28.  The  ratifications  were  exchanged 
on  June  20,  1867;  and  the  President  proclaimed  the  treaty  the 
same  day.  All  of  these  actions  took  place  before  the  House  of 
Representatives  had  given  its  consent  to  the  appropriation  of 
the  money  stipulated.  And  more  than  that,  both  sides  ap- 
pointed commissioners  3  for  the  delivery  of  Alaska  to  the  United 
States,  which  was  accomplished  on  October  n,  1867. 

When  the  House  took  up  the  question  of  the  appropriation, 
it  had  been  placed  in  such  a  position  that  it  could  not  well 
refuse.  Members  expressed  freely  their  views  on  the  limitations 
of  the  treaty  making  power  of  the  executive  and  of  the  Senate. 
But  they  complied  finally  with  what  was  expected  of  them  and 
passed  the  appropriation  by  a  vote  of  113  to  43 .4 

The  treaty  contained  seven  articles.  The  first  laid  the 
basis  for  two  famous  boundary  arbitrations.  The  boundary 
on  the  west  consisted  of  a  water  line  passing  "through  a  point 
in  Behring's  straits  on  the  parallel  of  sixty-five  degrees  thirty 
minutes  north  latitude,  at  its  intersection  by  the  meridian 
which  passes  midway  between  the  islands  of  Krusenstern,  or 
Ignalook,  and  the  island  of  Ratmanoff,  or  Noonarbook,  and 
proceeds  due  north,  without  limitation,  into  the  same  Frozen 
Ocean.  The  same  western  limit,  beginning  at  the  same  initial 
point,  proceeds  thence  in  a  course  nearly  southwest,  through 
Behring's  straits  and  Behring's  sea,  so  as  to  pass  midway  be- 
tween the  northwest  point  of  the  island  of  St.  Lawrence  and  the 
southeast  point  of  Cape  Choukotski,  to  the  meridian  of  one  hun- 

1P.'  W.  Seward,  Seward  at  Washington,  III.:  367. 

2  Sumner,  Works,  XL:  186. 

3  Diplomatic  Correspondence,   Pt.  I. :  404. 

4  Congressional  Globe,  1867-1868:  4055. 


a6o  LEADING  AMERICAN  TREATIES 

dred  and  seventy- two  west  longitude;  thence,  from  the  inter- 
section of  that  meridian,  in  a  southwesterly  direction,  so  as  to 
pass  midway  between  the  island  of  Atton  and  the  Copper  island 
of  the  Kormandorski  couplet  or  group,  in  the  North  Pacific 
ocean,  to  the  meridian  of  one  hundred  and  ninety-three  degrees 
west  longitude,  so  as  to  include  in  the  territory  conveyed  the 
whole  of  the  Aleutian  islands  east  of  the  meridian. "  l 

The  first  act  of  Congress  relating  to  Alaska  was  passed  July  27, 
1868.  It  created  a  customs'  district  out  of  the  territory  and 
made  it  the  duty  of  the  Secretary  of  the  Treasury  to  prevent  the 
killing  of  any  fur  seal  until  Congress  should  otherwise  provide. 
By  the  act  of  July  i,  1870,  the  Secretary  of  the  Treasury  was 
directed  to  lease  for  a  term  of  twenty  years  the  right  to  take  fur 
seals  on  the  islands  of  St.  Paul  and  St.  George  in  the  Pribilof 
group  for  an  annual  rental  of  not  less  than  $50,000  and  a  tax  of 
$2  on  each  fur-seal  skin  taken.  The  number  that  could  be  taken 
was  limited  to  100,000  and  the  season  for  taking  the  skins  was 
limited  to  June,  July,  September,  and  October.  Special  regula- 
tions were  authorized  for  the  Indians  to  capture  young  seals  at 
any  time  for  purposes  of  food  and  clothing.  Mr.  Boutwell 
leased,  accordingly,  this  privilege  to  a  corporation  chartered 
under  the  laws  of  California,  the  Alaska  Commercial  Company, 
John  F.  Miller.  President.  The  rental  was  fixed  at  $55,000. 

The  above  statute  made  no  provision  for  protecting  the  seals 
in  the  surrounding  waters,  although  it  was  generally  known  that 
the  seals  traveled  far  out  at  sea  in  search  of  food  and  resorted  to 
the  Pribilof  Islands  mainly  during  the  breeding  season  and  the 
season  for  bearing  the  young.  But  no  international  controver- 
sies arose  until  1868.  In  that  year  Sir  Lionel  Sackville-West,  the 
British  minister  in  Washington,  informed  the  Secretary  of  State, 
Bayard,  that  his  government  had  received  a  telegram  from  the 
commander  of  the  British  naval  force  in  the  north  Pacific 
announcing  that  three  Canadian  sealing  schooners  had  been 
seized  by  the  United  States  revenue  cutter  "Corwin"  while 
sailing  the  Bering  Sea  more  than  sixty  miles  from  the  nearest 
land.  The  master  and  one  of  the  crew  of  each  vessel  were  placed 
1  Malloy,  Treaties,  etc.,  II.:  522. 


THE  ALASKA  PURCHASE,  1867  261 

under  arrest  and  the  remainder  were  taken  to  San  Francisco  and 
there  left  to  shift  for  themselves.  Judge  Dawson  of  the  United 
States  condemned  the  vessels  and  sentenced  the  captains  and 
the  members  of  the  crews  to  a  fine  and  imprisonment  for  thirty 
days.  It  appeared  to  Sackville-West  that  the  United  States  was 
asserting  a  claim  to  the  sole  sovereignty  of  Bering  Sea  stretching 
600  and  700  miles  west  of  the  mainland  of  Alaska.  His  govern- 
ment had  no  doubt,  he  wrote,  that  the  United  States  would 
admit  the  illegality  of  the  proceedings  against  the  British  sub- 
jects and  vessels  concerned  and  make  reasonable  reparation.1 
The  State  Department  did  not  possess  the  information 
required  at  the  time.  But  it  afterward  turned  out  that  the 
British  minister  had  been  correctly  informed.  Judge  Dawson 
had  based  his  condemnation  of  the  vessels  and  the  conviction  of 
the  members  of  the  crew  on  the  understanding  that  Russia 
had  claimed  and  exercised  jurisdiction  over  that  part  of  Bering 
Sea  afterward  ceded  to  the  United  States  and  that  the  United 
States  had  succeeded  to  this  right;  hence  "all  the  penalties 
prescribed  by  law  against  the  killing  of  fur  bearing  animals 
must  therefore  attach  against  any  violation  of  law  within  the 
limits  before  described. "  2  Bayard  assured  Sackville-West  that 
he  need  have  no  apprehension  that  the  United  States  would 
avoid  its  international  obligations  and  that  new  regulations  for 
the  fur  seal  fisheries  were  under  consideration  by  the  Treasury 
Department.  But  during  the  next  year,  1887,  three  more 
Canadian  sealing  schooners  were  seized  by  an  American  revenue 
cutter;  and  Judge  Dawson  promptly  declared  them  forfeited. 
He  stated  that  for  the  want  of  books  at  his  command  he  had  to 
rely  upon  a  brief  prepared  by  N.  L.  Jeffries,  the  attorney  for  the 
Alaska  Commercial  Company,  for  collection  of  historical  events 
and  the  citation  of  authorities.  As  might  be  inferred,  this 
brief  was  devoted  to  a  maintenance  of  the  claim  that  the  Bering 
Sea  within  the  American  boundary  was  a  mare  clausum.3  Again, 
the  British  minister  received  the  first  information  in  Wash- 

^en.  Ex.  Doc.  106,  50  Cong.,  2  sess.:  7. 

2  Ibid.:  49. 

3  Moore,  International  Arbitrations.  I.:  775. 


262  LEADING  AMERICAN  TREATIES 

ington  of  the  event.  Attorney  General  Garland  directed  by 
telegraph  that  the  vessels  be  released.  The  marshal  at  Sitka 
wrote  a  letter  in  reply  expressing  the  belief  that  the  telegram  had 
been  thought  to  be  not  genuine.  Garland  helped  to  settle  the 
aggravated  situation  by  repeating  the  order  to  release  the 
schooners. 

Various  proposals  for  saving  the  fur  seals  from  extinction 
were  brought  forward  both  by  the  Foreign  Office  and  the 
State  Department.  But  no  agreement  could  be  reached,  partly 
because  of  friction  over  the  treaty  rights  of  Americans  to  engage 
in  the  northeastern  inshore  fisheries  off  Canada  and  Newfound- 
land. More  seizures  of  Canadian  sealing  vessels  were  made  in 
1889.  The  new  Secretary  of  State,  James  G.  Elaine,  defended 
the  seizures  on  the  ground  that  the  vessels  had  been  engaged  in  a 
pursuit  that  was  contra  bonos  mores,  which  involved  serious  and 
permanent  injury  to  the  rights  of  the  government  and  the  people 
of  the  United  States.  To  establish  this  ground,  it  was  unneces- 
sary, said  Elaine,  to  argue  the  sovereignty  of  the  United  States 
over  Bering  Sea  or  to  define  what  powers  had  been  acquired 
from  Russia.  The  fur  seals  constituted  the  most  valuable 
source  of  revenue  from  the  Alaskan  possessions.  Russia  had 
exercised  a  recognized  full  control  over  the  seal  fisheries  to  1867; 
and  since  the  cession  the  United  States  had  controlled  these 
fisheries  without  dispute  till  1886.  Vessels  of  other  nations  had 
been  permitted  to  engage  in  the  whale  fisheries  in  Bering  Sea, 
but  they  had  uniformly  abstained  from  engaging  in  the  fur  seal 
fisheries.  The  United  States  had  made  careful  regulations  for 
the  protection  of  the  seal  with  the  object  of  thereby  benefiting 
mankind.  During  the  four  years  from  1886  to  1889,  the  seal 
herds  had  decreased  by  forty  per  cent,  because  of  the  incursions 
made  by  Canadian  vessels,  while  the  seals  were  swimming  on  the 
high  seas  in  search  of  food. 

Blaine  continued,  "  In  the  judgment  of  this  Government  the 
law  of  the  sea  is  not  lawlessness.  Nor  can  the  law  of  the  sea  and 
the  liberty  which  it  confers  and  which  it  protects,  be  perverted 
to  justify  acts  which  are  immoral  in  themselves,  which  inevitably 
tend  to  results  against  the  interests  and  against  the  welfare  of 


THE  ALASKA  PURCHASE,  1867  263 

mankind.  One  step  beyond  which  Her  Majesty's  Government 
has  taken  in  this  contention,  and  piracy  finds  its  justification. "  l 

Lord  Salisbury  through  the  British  minister,  Sir  Julian  Paunce- 
fote,  denied  that  the  United  States  had  any  property  right  in  the 
seals  and  asserted  that  until  they  were  caught  they  belonged  to 
nobody.  He  denied  likewise  that  Russia  had  wielded  any  ex- 
clusive protection  over  the  seals  to  1867  and  cited  a  protest  by 
John  Quincy  Adams  against  the  ukase  of  1821,  which  forbade 
foreigners  to  engage  in  whaling  or  fishing  within  one  hundred 
miles  of  the  coast.2  Elaine  replied  that  J.  Q.  Adams  had  pro- 
tested against  the  application  of  the  ukase  of  1821  in  the  Pacific 
Ocean;  but  that  it  could  not  be  and  was  not  applied  to  Bering 
Sea.3  Salisbury  replied  in  turn  that  Bering  Sea  was  not  known 
by  that  name  in  1824;  he  quoted  from  contemporary  correspond- 
ence to  show  that  it  was  considered  a  part  of  the  Pacific  Ocean; 
and  he  closed  by  offering  to  submit  the  dispute  to  arbi- 
tration.4 

Thereupon,  Blaine  submitted  five  questions  which  should  form 
the  basis  for  the  arbitration.  Salisbury  suggested  a  few  modifi- 
cations; and  the  questions  were  ready  for  incorporation  in  the 
agreement  providing  for  arbitration.  This  was  concluded  on 
February  29,  1892.  Seven  arbitrators  should  sit,  two  to  be 
named  by  the  Queen  of  Great  Britain,  two  by  the  President  of 
the  United  States,  and  one  each  by  the  President  of  France,  the 
King  of  Italy,  and  the  King  of  Sweden  and  Norway.  Article  VI 
contained  the  five  questions;  and  Article  VII  specified  that  if  the 
answers  to  the  questions  left  the  subject  of  the  protection  of  the 
fur  seals  in  such  a  condition  that  the  concurrence  of  Great  Brit- 
ain was  necessary  for  the  establishment  of  regulations,  the 
arbitrators  could  then  determine  what  these  concurrent  regula- 
tions should  be. 

The  arbitrators  were  Justice  John  M.  Harlan  and  Senator 
John  I.  Morgan  of  the  United  States;  Lord  Hannen  of  the 
High  Court  of  Appeal  and  Sir  John  Thompson,  the  Canadian 

1  Foreign  Relations,  1890:  366. 

2  Ibid.,  419. 

3  Ibid.,  437. 

4  Ibid.,  456. 


264  LEADING  AMERICAN  TREATIES 

Minister  of  Justice,  of  Great  Britain;  Baron  Alphonse  de 
Courcel  of  France,  who  was  later  chosen  president  of  the 
tribunal;  Marquis  Emilio  Visconti  Venosta  of  Italy;  and  Gre- 
gers  Gram  of  Norway.  John  W.  Foster  acted  as  agent  for  the 
United  States  and  Charles  H.  Tupper  as  agent  for  Great  Britain. 
Among  the  counsel  for  the  United  States  were  Edward  J. 
Phelps,  James  C.  Carter,  Henry  W.  Blodgett,  F.  R.  Coudert,  and 
Robert  Lansing.  For  Great  Britain,  Sir  Charles  Russell,  Her 
Majesty's  Attorney  General,  Sir  Richard  Webster,  and  Christo- 
pher Robinson  of  Canada  served  as  counsel.  The  submission 
of  cases,  counter  cases,  and  arguments  had  been  provided  for 
in  the  treaty.  These  fill  sixteen  substantial  volumes.  It  will  be 
sufficient  here  to  repeat  the  five  questions  submitted  to  the  tri- 
bunal, to  indicate  the  trend  of  the  argument,  and  to  summarize 
the  answer  of  the  tribunal  to  each  of  the  questions. 

Question  i.  What  exclusive  jurisdiction  in  the  sea  now 
known  as  the  Bering  Sea,  and  what  exclusive  rights  in  the  seal 
fisheries  therein,  did  Russia  assert  and  exercise  prior  and  up  to 
the  time  of  the  cession  of  Alaska  to  the  United  States? 

In  support  of  the  first  part  of  this  question,  that  of  exclusive 
jurisdiction  in  the  sea,  the  United  States  had  relied  upon 
documentary  evidence  obtained  from  the  archives  in  Alaska  at 
the  time  of  the  purchase.  A  native  Russian,  Ivan  Petroff,  had 
been  employed  to  translate  these  documents.  For  some  reason, 
he  perverted  the  meaning  of  various  phrases  to  favor  greatly  the 
cause  of  the  United  States.  Count  Nesselrode  was  made  to  say 
in  1824  that  the  Czar  would  protect  the  Russian  American 
Company's  interests  "  in  the  catch  and  preservation  of  all  marine 
animals;"  whereas  he  actually  said  that  "the  government  has 
never  lost  sight  of  its  interests. "  In  another  instance  Nesselrode 
was  made  to  say,  "the  sovereignty  of  Russia  over  the  shores  of 
Siberia  and  America,  as  well  as  over  the  Aleutian  Islands  and  the 
intervening  sea,  has  long  since  been  acknowledged  by  all  the 
powers;"  while  in  the  correct  translation  he  mentioned  only 
"the  coasts  of  Siberia  and  the  Aleutian  Islands."  Facsimile 
copies  of  the  original  documents  had  been  furnished  the  British 
agent,  but  as  soon  as  these  errors  were  discovered  John  W. 


THE  ALASKA  PURCHASE,  1867  265 

Foster  communicated  the  fact  to  Mr.  Tupper,  November  2, 

I892.1 

Six  of  the  judges  concurring,2  the  tribunal  decided  that  by  the 
ukase  of  1821,  Russia  had  claimed  jurisdiction  in  Bering  Sea  to 
the  extent  of  100  Italian  miles  from  the  coasts  and  islands  belong- 
ing to  her.  But  in  the  negotiations  leading  up  to  the  treaty  with 
the  United  States  in  1824  and  with  Great  Britain  in  1825, 
Russia  had  admitted  her  jurisdiction  in  that  sea  should  be  re- 
stricted to  the  reach  of  a  cannon  shot  from  the  shore.  And  it 
appeared  to  the  court  that  from  1824  to  1867,  Russia  had  "never 
asserted  in  fact  or  exercised  any  exclusive  jurisdiction  in  Ber- 
ing's Sea  or  any  exclusive  rights  in  the  seal  fisheries  therein 
beyond  the  ordinary  limits  of  territorial  waters.  "  3 

Question  2.  How  far  were  claims  of  jurisdiction  as  to  the  seal 
fisheries  recognized  and  conceded  by  Great  Britain? 

The  first  question  having  been  answered  in  the  way  it  was, 
the  second  admitted  of  but  one  reply,  the  same  six  judges 
concurring,  that  Great  Britain  had  not  recognized  or  conceded 
any  exclusive  jurisdiction  on  the  part  of  Russia  in  the  seal 
fisheries  outside  of  ordinary  territorial  waters. 

Question  3.  Was  the  body  of  water  now  known  as  the  Bering 
Sea  included  in  the  phrase  Pacific  Ocean,  as  used  in  the  Treaty  of 
1825  between  Great  Britain  and  Russia;  and  what  rights,  if  any, 
in  Bering  Sea  were  held  and  exclusively  exercised  by  Russia 
after  said  treaty? 

The  answer  to  this  question  depended  upon  the  interpretation 
of  documents  submitted  by  both  parties.  These  consisted  of 
treaties,  protocols,  reports  of  directors  of  the  Russian  American 
Company,  reports  of  officials  of  the  Czar,  and  the  writings  of 
navigators.  The  British  counsel  were  able  to  prove  that  the 
body  of  water  known  as  Bering  Sea  was  included  in  the  phrase 
"Pacific  Ocean"  as  used  in  the  Treaty  of  1825;  and  six  of  the 
judges  so  decided.  The  British  counsel  were  likewise  able  to 
prove  to  the  satisfaction  of  the  same  six  judges  that  Russia  had 


of  the  United   States,  54,  6r,  and  Counter  Case  of  the  United 
States,  151,  153,  147. 

2  Senator  Morgan  did  not  concur  in  the  answer  to  any  of  the  five  questions. 
sFur  Seal  Arbitration,  I.:  77  contains  the  award. 


266  LEADING  AMERICAN  TREATIES 

held  no  exclusive  rights  of  jurisdiction  in  Bering  Sea  and  had 
exercised  no  exclusive  rights  in  the  seal  fisheries  outside  of  the 
ordinary  territorial  waters  after  the  Treaty  of  1825. 

Question  4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction 
and  as  to  the  seal  fisheries  in  Bering  Sea  east  of  the  water  bound- 
ary, in  the  treaty  between  the  United  States  and  Russia  of  the 
3oth  of  March,  1867,  pass  unimpaired  to  the  United  States  under 
that  treaty? 

The  rights  of  Russia  having  been  defined  by  the  answers  to 
the  previous  three  questions,  the  same  six  judges  had  no  diffi- 
culty in  agreeing  that  those  rights  did  pass  unimpaired  to  the 
United  States. 

Question  5.  Had  the  United  States  any  right,  and  if  so,  what 
right  of  protection  or  property  in  the  fur  seals  frequenting  the 
islands  of  the  United  States  in  Bering  Sea  when  such  seals  were 
found  outside  the  ordinary  three-mile  limit? 

In  his  written  argument  James  C.  Carter  for  the  United 
States  asked  what  law  was  to  govern  the  decision.  He  concluded 
that  the  tribunal  was  to  be  guided  by  the  law  of  nations;  the 
sources  of  which  were,  first,  the  actual  practice  and  usages  of 
nations;  second,  the  judgments  of  courts  which  administer  the 
law  of  nations,  such  as  prize  courts  and  courts  of  admiralty; 
third,  if  the  two  previous  sources  should  fail  to  furnish  a  rule, 
then  resort  should  be  had  to  the  source  from  which  all  law  flows, 
the  dictates  of  right  reason,  natural  justice,  or  the  law  of  nature; 
fourth,  and  in  ascertaining  what  the  law  of  nature  is  upon  any 
particular  question,  the  municipal  law  of  states,  so  far  as  it 
speaks  with  a  concurring  voice,  is  a  prime  fountain  of  knowledge; 
and  fifth,  the  concurring  authority  of  jurists  of  established 
reputation.1 

Carter  took  up  next  the  question  of  protection  and  property 
in  the  seal  herd.  He  denied  the  contention  of  Great  Britain  that 
the  seals  were  res  communes  or  res  nullius.  Blackstone  made  a 
distinct  consideration  of  what  wild  animals  were  the  subject  of 
property.  The  essential  characteristics  which  rendered  such 
animals  subject  to  property  were  "that  the  care  and  industry  of 
1  Argument  of  the  United  States:  7. 


THE  ALASKA  PURCHASE,  1867  267 

man  acting  upon  a  natural  disposition  of  the  animals  to  return  to 
a  place  of  wonted  resort  secures  their  voluntary  and  habitual 
return  to  his  custody  and  power,  so  as  to  enable  him  to  deal  with 
them  in  a  similar  manner  and  to  obtain  from  them  similar 
benefits  as  in  the  case  of  domestic  animals."  l  The  fur  seals 
furnished  an  excellent  example.  "  They  are  by  the  imperious  and 
unchangeable  instincts  of  their  nature  impelled  to  return  from 
their  wanderings  to  the  same  place;  they  are  defenseless  against 
man,  and  in  returning  to  the  same  place  voluntarily  subject 
themselves  to  his  power,  and  enable  him  to  treat  them  in  the 
same  way  and  to  obtain  from  them  the  same  benefits  as  may  be 
had  in  the  case  of  domestic  animals.  They  thus  become  the 
subjects  of  ordinary  husbandry  as  much  as  sheep  or  any  other 
cattle.  All  that  is  needed  to  secure  this  return,  is  the  exercise 
of  care  and  industry  on  the  part  of  the  human  owner  of  the  place 
of  resort. "  2  Carter  claimed  that  in  the  case  of  bees  their 
nature  is  no  more  changed  by  man  than  that  of  the  seals.  This 
held  true  of  pigeons,  deer,  wild  geese,  or  swans;  and  yet  property 
in  these  was  universally  recognized  so  long  as  they  retained  the 
animum  revertendi.  But  what  was  the  extent  of  such  owner- 
ship? Carter  replied  that  the  property  of  the  United  States  in 
the  seal  herd  was  coupled  with  a  trust  for  the  benefit  of  mankind 
and  that  it  was  the  usufruct  or  the  increase  that  belonged  to 
the  United  States.3 

Mr.  Phelps  presented  the  arguments  for  the  United  States 
on  the  freedom  of  the  sea  and  on  the  right  to  protect  the  fur 
seals  on  the  high  seas.  He  held  that  the  sea  was  free  only  for 
innocent  and  inoffensive  use.  In  using  the  sea  nations  submit 
to  principles  of  law  and  pay  due  regard  to  the  rights  of  others. 
But  the  right  of  self  defence  had  never  been  given  up  by  any 
state.  "Instead  of  taking  its  defence  into  its  own  hands,  the 
Government  of  the  United  States  had  refrained  from  the  exercise 
of  that  right,  has  submitted  itself  to  the  judgment  of  this 
Tribunal,  and  has  agreed  to  abide  the  result."  Phelps  stated 

1  Argument  of  the  United  States:  47. 

a  Ibid.:  47- 
3  Ibid.:  51. 


268  LEADING  AMERICAN  TREATIES 

further,  "If  by  the  judgment  of  this  high  and  distinguished 
Tribunal  the  Alaskan  seal  herd  is  sentenced  to  be  exterminated, 
a  result  which  the  United  States  Government  has  been  unable  to 
anticipate,  it  must  submit,  because  it  has  so  agreed. "  l 

How  the  British  counsel  met  the  claims  of  the  Americans  may 
be  seen  in  the  oral  argument  of  Sir  Charles  Russell.  He 
referred  to  the  interchangeable  use  by  Carter  of  the  moral  law 
and  the  law  of  nature  for  international  law.  "It  may  be  ad- 
mitted," said  Sir  Charles,  "that  all  systems  of  law  prevailing, 
I  care  not  in  what  country,  profess  to  be  founded  upon  principles 
of  justice.  Does  it  follow  from  that  that  every  principle  of 
justice,  as  one  nation  or  another  may  view  it,  or  every  prin- 
ciple of  morality  as  one  nation  or  another  may  view  it,  forms 
part  of  international  law?  By  no  means.  International  law, 
properly  so-called,  is  only  so  much  of  the  principles  of  morality 
and  justice  as  the  nations  have  agreed  shall  be  part  of  those  rules 
of  conduct  which  shall  govern  their  relations  one  with  another. 
...  In  other  words,  international  law,  as  there  exists  no  super- 
ior external  power  to  impose  it,  rests  upon  the  principle  of 
consent.  In  the  words  of  Grotius,  Placuitne  Gentibus?  is  there 
the  consent  of  nations.  If  there  is  not  this  consent  of  nations, 
then  it  is  not  international  law. " 

On  the  subject  of  property  rights  in  the  seal,  Sir  Charles  paid 
his  respects  to  the  trusteeship  of  the  United  States,  mentioned 
by  Mr.  Carter.  The  United  States  asked  the  tribunal  to  put  an 
end  to  pelagic  sealing  in  the  Bering  Sea  and  in  the  Pacific  Ocean, 
to  authorize  the  visit  and  search  of  foreign  vessels  engaged  in 
sealing  and  their  confiscation,  if  necessary,  and  the  United 
States  would  then  recognize  its  duty  as  trustee  to  mankind 
for  the  benefit  of  the  fur  seal  at  the  market  price  enhanced  by 
duties  imposed  on  the  business  and  by  the  fact  that  the  business 
itself  was  a  monopoly.3 

"Now,  it  is  said"  continued  Sir  Charles  "that  these  animals 
resort  to  the  islands  to  breed,  and  resort  there  in  compliance 

'Argument  of  the  United  States:  178. 
•Oral  Arguments  of  Great  Britain:  8. 
»Ibid.:  29. 


THE  ALASKA  PURCHASE,  1867  269 

with  what  has  been  picturesquely  described  as  the  'imperious 
instincts  of  their  nature.'  They  do. 

"And  when  they  get  there  what  do  the  representatives  of  the 
United  States  do?  Can  they  do  anything  to  improve  the  breed? 
Nothing.  .  .  .  What  do  they  do?  They  do  two  things,  one 
positive  the  other  negative,  and  two  things  only.  The  positive 
thing  is  that  they  do  what  a  game  preserver  does;  he  has  a  game 
keeper  to  prevent  poaching;  they  have  people  on  the  islands  to 
prevent  raiding.  The  negative  thing  that  they  do  is  that  they  do 
not  kill  all.  They  knock  on  the  head  a  certain  number,  but 

exercise  a  certain  amount  of  discrimination, Let  me 

illustrate  my  meaning.  Suppose  the  existence,  which  there  may 
well  be  in  some  undiscovered  region,  of  an  island  where  there  are 
seals;  what  does  the  United  States  do  on  the  Pribiloff  Islands 
that  Nature,  unassisted,  does  not  do  on  the  undiscovered  island? 

"The  only  thing  that  nature  does  not  do  is  to  knock  them  on 
the  head 

"Do  they  do  anything  to  induce  them  to  go  there?  No,  they 
do  not.  On  the  contrary,  if  they  were  to  attempt  by  any  kind  of 
artificial  means  to  provide  for  the  reception  of  the  seals,  it  would 
have  the  effect  of  driving  them  away,  not  of  inducing  them  to 
come.  Unlike  the  case  of  the  bees, — the  wild  hive  of  bees,  for 
which  the  man  desiring  that  hive  provides  a  mechanical  con- 
trivance, and  also  the  beginning  of  a  supply  of  food  for  them  to 
induce  them  to  form  their  combs  of  honey, — unlike  the  case  of 
the  doves,  for  which  the  owner  supplies  food  and  a  dovecote 
where  they  get  shelter  from  the  weather,  the  owners  of  the 
Pribiloff  Islands  do  nothing;  and  if  they  were  to  do  anything  it 
would  have  the  effect  of  repelling  rather  than  of  inducing  them 
to  come."  1 

Sir  Charles  admitted  that  the  seals  have,  "by  this  imperious 
and  unchangeable  instinct  of  their  nature,  the  animus  rever- 
tendi. "  But  he  knew  of  no  instance,  and  the  American  counsel 
had  cited  none,  in  which  this  doctrine  had  given  a  property  right 
in  migratory  animals.2 

1  Oral  arguments  of  Great  Britain,  208. 

2  Ibid.:    208. 


270  LEADING  AMERICAN  TREATIES 

"Am  I  not  well  founded,"  asked  Sir  Charles,  "in  saying  that 
by  the  municipal  law  of  every  country  in  the  world,  the  right 
to  property  in  things  must  be  made  out  according  to  the  munici- 
pal law  of  the  place  where  the  property  is  situated,  subject 
always  to  certain  rules  as  to  devolution,  etc.,  with  which  we  are 
not  now  concerned,  founded  upon  the  principle  that  mobilia 
sequuntur  personam.  They  must  have  their  right  of  title  by 
municipal  law.  Does  the  United  States  municipal  law  give 
them  property?  No.  The  legislative  even  of  the  United  States 
has  not  affected  to  give  property. "  l  He  pointed  out  that  the 
United  States  had  extended  only  game  laws  to  the  area  in  ques- 
tion. The  United  States  did  not  assume  to  grant  any  property 
right  in  the  seals  to  the  lessees;  the  only  right  given  was  the 
license  to  kill  within  specified  restrictions.  He  pointed  out 
further  that  game  laws  were  not  predicated  upon  the  ownership 
by  the  state  in  the  game;  they  operated  merely  to  stay  the  hand 
of  the  slayer. 

Phelps'  argument  on  the  freedom  of  the  sea  was  met  in  the 
British  written  argument. 

"What  is  the  freedom  of  the  sea? 

"  The  right  to  come  and  go  upon  the  high  sea  without  let  or  hin- 
drance, and  to  take  therefrom  at  will  and  pleasure  the  produce 
of  the  sea.  It  is  the  right  which  the  United  States  and  Great 
Britain  endeavoured,  and  endeavoured  successfully,  to  maintain 
against  the  claim  of  Russia  seventy  years  ago.  It  is  the  right  in 
defence  of  which,  against  excessive  claims  of  other  nations,  the 
arguments  of  the  United  States  have  in  former  times  held  so 
prominent  a  place. 

"And  what  is  this  claim  to  protect  the  seal  in  the  high  sea? 
It  is,  as  of  right  and  for  all  time,  to  let  and  hinder  the  vessels  of 
all  nations  in  their  pursuit  of  seals  upon  the  high  sea;  to  forbid 
them  entrance  to  those  vast  seas  which  the  United  States  have 
included  in  the  denomination  of  the  'waters  of  Alaska;'  to  take 
from  these  vessels  the  seals  they  have  lawfully  obtained;  and  to 
search,  seize,  and  condemn  the  vessels  and  crews,  or  with  show  of 
force  to  send  them  back  to  the  ports  from  which  they  set  out. 
1Oral  Arguments  of  Great  Britain:  226. 


THE  ALASKA  PURCHASE,  1867  271 

"From  giving  its  high  sanction  to  these  views  this  Tribunal 
may  well  shrink;  and  it  is  with  no  mere  idle  use  of  high-sounding 
phrases  that  Great  Britain  once  more  appears  to  vindicate  the 
freedom  of  the  sea. "  l 

In  reply  to  the  fifth  question,  then,  a  majority  of  the  arbitra- 
tors, Baron  de  Courcel,  Lord  Hannen,  Sir  John  Thompson, 
Marquis  Visconti  Venosta,  and  Mr.  Gregers  Gram  agreed  to 
"  decide  and  determine  that  the  United  States  has  not  any  right 
of  protection  or  property  in  the  fur  seals  frequenting  the  islands 
of  the  United  States  in  Bering  Sea,  when  such  seals  are  found 
outside  the  ordinary  three  mile  limit." 

In  accordance  with  powers  conferred  by  the  treaty  providing 
for  the  arbitration,  the  tribunal  recommended  legislation  to  be 
enacted  by  the  two  governments  for  the  protection  of  the  fur 
seals  within  sixty  miles  of  the  Pribilof  Islands.  The  two  govern- 
ments complied;  but  it  was  found  that  the  number  in  the  seal 
herds  steadily  diminished.  Long  and,  at  times,  tedious  negotia- 
tions for  further  protection  of  the  seals  followed.  Finally,  a 
treaty  was  concluded  in  Washington  on  July  7,  1911,  between 
the  United  States,  Great  Britain,  Japan,  and  Russia.  The 
parties  agreed  to  prohibit  all  persons  subject  to  their  jurisdictions 
from  engaging  in  pelagic  sealing  in  the  Pacific  Ocean,  north  of  30 
degrees  latitude;  and  the  seas  of  Bering,  Kamchatka,  Okhotsk, 
and  Japan  were  definitely  included.  Sea  otters  were  likewise 
included  in  this  protection.  The  killing  of  seals  on  land  was 
subjected  to  definite  proportions  and  the  distribution  of  seal 
skins  should  take  place  in  accordance  with  understandings, 
reached  chiefly  through  concessions  made  by  the  United  States.2 

It  needs  be  said  that  Great  Britain  obtained  compensation 
for  the  Canadian  owners  whose  sealing  schooners  had  been 
seized  in  the  eighties  and  for  the  members  of  the  crews  who  had 
been  subjected  to  fine  and  imprisonment.  The  arbitration 
commission  created  by  the  treaty  of  February  8,  1896,  awarded 
$473,151.26  for  this  purpose,  which  the  United  States  paid. 

The  other  great  arbitration  which  found  its  basis  in  article  one 

1  Argument  of  Great  Britain:   10. 

8  See  treaty  in  Charles,  Treaties,  etc.,  84. 


272  LEADING  AMERICAN  TREATIES 

of  the  Treaty  of  1867  was  that  relating  to  the  eastern  boundary 
of  Alaska.  This  dispute  was  precipitated  by  the  discovery  of 
gold  in  the  Klondyke  in  1896.  The  treaty  between  Russia  and 
Great  Britain  in  1825  specified  that  the  boundary  should  begin 
at  the  southernmost  point  of  Prince  of  Wales  Island,  thence 
northward  "along  the  channel  called  Portland  channel,  as  far  as 
the  point  of  the  continent  where  it  strikes  the  s6th  degree  of 
north  latitude;  from  this  last  mentioned  point,  the  line  of  demar- 
cation shall  follow  the  summit  of  the  mountains  situated  parallel 
to  the  coast  as  far  as  the  point  of  intersection  of  the  14151  degree 
of  west  longitude;"  and  thence  follow  that  meridian  to  the 
' '  Frozen  ocean. ' '  This  provision  was  followed  with  an  explanation 
that  wherever  the  summit  of  the  mountains,  situated  parallel  to 
the  coast,  should  "prove  to  be  at  the  distance  of  more  than  ten 
marine  leagues  from  the  ocean,  the  limit  between  the  British 
possessions  and  the  line  of  coast  which  is  to  belong  to  Russia  as 
above  mentioned  shall  be  formed  by  a  line  parallel  to  the  winding 
of  the  coast,  and  which  shall  never  exceed  the  distance  of  ten 
marine  leagues  therefrom."  1 

This  description  shut  the  Canadians  out  from  the  coast  lands 
and  the  waters  of  the  Pacific  from  the  Portland  Channel  north- 
ward. In  1898  Great  Britain  on  behalf  of  Canada  laid  claim  to 
the  ports  of  Dyea  and  Skagway  on  the  Lynn  Channel  and  based 
the  claim  on  a  novel  construction  of  the  treaty.  Britain  con- 
tended that  the  line  defined  as  running  ten  leagues  parallel  with 
the  sinuosities  of  the  coast  or  heads  to  tidewater  inlets  should 
run  parallel  to  the  general  trend  of  the  coast  itself.  Britain 
offered  arbitration  but  the  United  States  held  back,  because  it 
wanted  other  and  earlier  disputes  cleared  away,  such  as  the 
protection  to  the  seals,  the  northeastern  fisheries,  the  Venezuela 
dispute,  and  the  cancellation  of  the  Clayton-Bulwer  Treaty. 
Finally,  the  United  States  agreed  to  refer  the  dispute  to  a  joint 
commission  of  "impartial  jurists  of  repute,"  January  24,  1903; 
Secretary  Hay  signed  for  the  United  States  and  Michael  H. 
Herbert  for  Great  Britain.  The  tribunal  was  to  be  composed  of 
six  jurists.  The  United  States  chose  Secretary  of  War  Elihu 

1  M alloy,   Treaties,  II.:   1522. 


THE  ALASKA  PURCHASE,  1867  273 

Root,  Senator  H.  C.  Lodge,  and  Senator  George  Turner.  Great 
Britain  chose  Baron  Alverstone,  Lord  Chief  Justice  of  England, 
Sir  Louis  Jette,  Lieutenant  Governor  of  Quebec,  and  Mr.  A.  B. 
Aylesworth. 

The  tribunal  met  in  London,  September  3,  1903.  Except  for 
the  islands  of  Pearse  and  Wales  in  the  Portland  Channel  the 
United  States  won  its  case  completely.  American  counsel  re- 
lied in  their  argument  upon  the  undisputed  possession  by  Russia 
from  1825  to  1867  and  by  the  United  States  until  the  discovery 
of  gold  in  the  Klondyke;  upon  British  and  Canadian  official 
acts;  upon  maps  drawn  by  the  British  admiralty;  upon  the 
location  of  American  postoffices,  customs  houses,  and  mission 
schools,  and  their  maintenance  for  twenty  years  within  the 
disputed  areas.  Britain  rested  her  contention  primarily  on  the 
impossibility  of  drawing  the  line  thirty  miles  inland  parallel  to 
the  sinuous  edge  of  salt  water;  it  should  therefore  cut  across  the 
deeper  inlets.  The  rush  to  the  Klondyke  had  demonstrated  that 
there  was  no  inland  chain  of  mountains  near  the  coast  but  a 
number  of  peaks,  hence  the  line  should  follow  the  general 
direction  of  these  peaks;  which  would  likewise  cut  across  the 
deeper  inlets. 

The  two  Canadian  jurists  could  not  agree  with  the  majority. 
A  few  excerpts  from  the  opinion  of  Lord  Alverstone  will  indicate 
the  trend  of  his  reasoning  and  the  character  of  the  dispute. 

"In  ordinary  parlance  no  one  would  call  the  waters  of  any 
of  these  channels  or  inlets  between  the  islands,  or  between  the 
islands  and  the  mainland,  'ocean'.  I  agree  with  the  view  pre- 
sented on  behalf  of  Great  Britain,  that  no  one  coming  from  the 
interior  and  reaching  any  of  these  channels,  and  particularly  the 
head  of  Lynn  Canal  or  Taku  Inlet,  would  describe  himself  as 
being  upon  the  ocean,  but,  on  the  other  hand,  it  is  quite  clear  that 
the  Treaty  does  regard  some  of  these  channels  as  the  ocean. 
.  .  .  This  consideration,  however,  is  not  sufficient  to  solve  the 
question  of  the  word  'coast'  to  which  the  mountains  were  to  be 
parallel, "l 

"There  is,  so  far  as  I  know,  no  recognized  rule  of  international 
1  Alaskan  Boundary  Tribunal,  I.:  38. 


274  LEADING  AMERICAN  TREATIES 

law,  which  would  by  implication  give  a  recognized  meaning  to 
the  word  'coast'  as  applied  to  such  sinuosities  and  such  waters 
different  from  the  coast  itself. " 

"As  I  have  said  more  than  once,  the  locus  in  quo  to  which  the 
Treaty  was  referring  precludes  the  possibility  of  construing  the 
word  'coast'  in  any  particular  article  in  any  special  way,  if  it 
does  not  refer  to  the  coast  line  of  the  continent.  I  think  the 
words  'upon  the  border  of  the  continent  comprised  within  the 
limits  of  the  Russian  possessions'  in  Article  V  rather  confirm  the 
view  that  Russia  was  to  get  a  strip  all  along  the  continent,  but  I 
do  not  think  that  much  reliance  can  be  placed  upon  this  because 
of  the  provision  as  to  rivers  and  streams  in  Article  VI.1 

"Turning  now  from  a  consideration  of  the  language  of  the 
Treaty  alone,  what  light  is  thrown  upon  this  question  by  refer- 
ence to  the  negotiations? 

"After  most  careful  examination,  I  have  been  unable  to 
find  any  passage  which  supports  the  view  that  Great  Britain 
was  directly  or  indirectly  putting  forward  a  claim  to  the  shores 
or  ports  at  the  head  of  the  inlets.  This  is  not  remarkable,  inas- 
much as  no  one  at  the  time  had  any  idea  that  they  would  become 
of  any  importance. "  2 

By  Article  II  of  the  Treaty  of  1867,  the  United  States  suc- 
ceeded to  all  the  public  buildings  and  lands  in  Alaska,  the 
archives  included,  with  the  exception  of  the  churches,  which 
should  remain  the  property  of  the  resident  members  of  the 
Greek  Oriental  Church. 

Article  III.  The  Inhabitants  of  the  region  might  reserve 
their  natural  allegiance  and  they  were  given  three  years  in  which 
to  return  to  Russia ;  but  if  they  preferred  to  remain  in  the  terri- 
tory they  should  be  admitted  to  American  citizenship.  No 
restriction  was  placed  upon  the  control  by  the  United  States 
over  the  aboriginal  tribes. 

Article  IV  provided  that  the  cession  should  be  considered 
complete  upon  the  exchange  of  ratifications.  Agents  should  be 
appointed  to  arrange  for  the  transfer  of  the  territory. 

1  Alaskan   Boundary  Tribunal.  L:  30. 
•  Ibid.,  I.:  40. 


THE  ALASKA  PURCHASE,  1867  275 

Article  V  stipulated  that  the  Russian  troops  should  be  with- 
drawn immediately  upon  the  exchange  of  ratifications. 

Article  VI  stipulated  the  price,  $7,200,000  in  gold,  payable 
within  ten  months  after  the  exchange  of  ratifications.  The 
cession  was  declared  to  be  "free  and  unincumbered  by  any 
reservations,  privileges,  franchises,  grants,  or  possessions,  by  any 
associated  companies,  whether  corporate  or  incorporate,  Russian 
or  any  other,  or  by  any  parties,  except  merely  private  individual 
property  holders;  .  .  .  ."  It  was  for  the  insertion  of  this 
clause  that  Seward  agreed  to  pay  $200,000. 

Article  VII  provided  for  the  exchange  of  ratifications  in 
Washington  within  three  months  after  the  President  had  ratified 
with  the  advice  and  consent  of  the  Senate.1 

BIBLIOGRAPHY 

Alaskan  Boundary  Tribunal,  Proceedings.     8  volumes.    Washington,  1004. 

BANCROFT,  FREDERICK. — The  Life  of  William  H.  Seward.  Two  volumes, 
New  York,  1900. 

BANCROFT,  H.  H.— History  of  Alaska,  1730-1885.  Works,  XXXIII.  San 
Francisco,  1886. 

Diplomatic  Correspondence,  1867,  Part  I.  or  House  Doc.  i,  40  Cong.,  2 
session,  part  i.  Washington,  1868. 

Fur  Seal  Arbitration.  Proceedings  of  the  Tribunal.  15  volumes  and  a  sup- 
plementary one.  Washington,  1895. 

SEWARD,  FREDERICK  W. — Seward  at  Washington.  Volume  II.  New 
York,  1891. 

1  Malloy,  Treaties,  etc.,  II.:  1521. 


CHAPTER  XIH 
THE  TREATY  OF  WASHINGTON,   1871 

"I  trust  I  need  not  express  how  profound  is  my  regret  at  the  conclusion 

to  which  her  Majesty's  government  have  arrived It  would  be 

superfluous  in  me  to  point  out  to  your  lordship  that  this  is  war.  No  matter 
what  may  be  the  theory  adopted  of  neutrality  in  a  struggle,  when  this 
process  is  carried  on  in  the  manner  indicated,  from  a  territory  and  with  the 
aid  of  the  subjects  of  a  third  party,  that  third  party  to  all  intents  and  pur- 
poses ceases  to  be  a  neutral."— -CHARLES  FRANCIS  ADAMS  TO  LORD  RUSSELL. 

During  the  Civil  War,  several  leading  English  politicians  had, 
as  Lord  Salisbury  expressed  it,  put  their  money  on  the  wrong 
horse.  Even  as  astute  a  man  as  Gladstone  anticipated  with 
certainty  the  success  of  the  Southern  States.  In  his  speech  at 
Newcastle,  October  7,  1862,  he  declared  "there  is  no  doubt  that 
Jefferson  Davis  and  other  leaders  of  the  South  have  made  an 
army;  they  are  making,  it  appears,  a  navy;  and  they  have  made 
what  is  more  than  either,  they  have  made  a  nation. "  l  On  the 
eve  of  Vicksburg  and  Gettysburg,  June  30,  1863,  he  stated  in 
the  House  of  Commons,  "  We  do  not  believe  that  the  restoration 
of  the  American  Union  by  force  is  attainable.  I  believe  that  the 
public  opinion  of  this  country  is  unanimous  upon  that  subject." 
Lord  Palmerston,  Prime  Minister,  desired  the  division  of  the 
republic  as  a  diminution  of  a  dangerous  power  2  and  argued 
openly  that  Great  Britain  had  a  right  to  furnish  both  belliger- 
ents "  with  ships  destined  for  warlike  purposes. "  '  Earl  Russell, 
the  Secretary  of  State  for  Foreign  Affairs,  looked  upon  it  as  a 
duty  of  the  British  government  to  preserve  for  his  countrymen 
"the  legitimate  and  lucrative  trade  of  ship  building."  These 
men  could  lay  claim  to  statesmanship.  For  the  politicians  the 
opinion  of  G.  W.  P.  Bentinck,  M.  P.,  will  suffice.  In  a  speech 
at  Kings  Lynn  he  gave  his  sympathy  to  the  Southerners,  for  they 

>Morley,  Gladstone,  II.:   79. 

»Ibid.,   H.:   82. 

1  House  of  Commons,  July  23,  1863. 

276 


THE  TREATY  OF  WASHINGTON,   1871  277 

were  fighting  against  "one  of  the  most  grinding,  one  of  the  most 
galling,  one  of  the  most  irritating  attempts  to  establish  tyranni- 
cal government  that  ever  disgraced  the  history  of  the  world." 
He  went  on,  "  But  there  is  a  further  lesson  to  be  learned.  The 
result  of  these  much  vaunted  institutions,  which  we  have  heard 
praised  before,  and  which  we  shall  again  hear  praised  by  the 
hired  spouters  of  associations,  is  this,  that  the  nation  becomes  so 
brutalized  that  the  civilized  man  disappears;  he  is  afraid  to  put 
himself  forward;  he  is  ashamed  of  his  country;  he  has  no  voice  in 
the  conduct  of  her  affairs;  and  the  whole  nation  is  turned  over  to 
the  control  of  men  such  as  Lincoln  and  Butler,  whom  I  do  not 
hesitate  to  denounce,  after  their  conduct  in  the  last  few  months, 
as  men  who  are  a  disgrace  to  civilization. "  l 

The  strange  feature  of  this  attitude  taken  by  statesmen  and 
politicians  is  that  they  voiced  public  opinion.  Richard  Cobden 
stood  on  the  other  side.  He  commented  tersely  in  the  House  of 
Commons,  April  24,  1863,  "We  generally  sympathize  with 
everybody's  rebels  but  our  own;"  and  he  estimated  that  nine- 
teen-twentieths  of  the  members  of  English  society  felt  firmly 
convinced  that  the  Civil  War  could  end  only  in  separation.2 
Captain  James  D.  Bulloch,  the  naval  representative  of  the  Con- 
federate States  in  Europe,  wrote  in  his  book  in  1884  that  the 
great  majority  of  the  people  of  Great  Britain  were  on  the  South- 
ern side  and  the  men  in  the  army  and  the  navy  unanimously  so.3 
Charles  Francis  Adams  Jr.  who  was  with  his  father,  then  Ameri- 
can minister  in  London,  agrees  that  sympathy  for  the  Southern 
cause  pervaded  the  members  of  the  learned  professions,  the 
commercial,  financial,  and  banking  circles,  and  the  officers  of 
the  army  and  navy.4  A  noted  Frenchman,  who  was  then  in 
exile  in  England,  Louis  Blanc,5  compared  the  sympathy  for  the 
North  to  a  dam  and  the  sympathy  for  the  South  to  a  torrent. 

The  Confederacy  had  anticipated  this  situation  in  Great  Bri- 
tain and  counted  heavily  upon  it  for  support.  Senator  J.  H. 

1  London  Morning  Post,  November  4,  1862. 

2  Cobden,  Speeches,  II.:  103. 

3  Bulloch,  Secret  Service  of  the  Confederate  States,  II:  303. 

4  C.  F.  Adams,  The  Treaty  of  Washington;  34. 
6  Blanc,  Letters  on  England:  146. 


278  LEADING  AMERICAN  TREATIES 

Hammond  of  South  Carolina  struck  the  keynote  in  a  speech  in 
the  Senate,  March  4,  1858:  "Without  firing  a  gun,  without 
drawing  a  sword,  should  the  North  make  war  on  us,  we  could 
bring  the  whole  world  to  our  feet.  What  would  happen  if  no 
cotton  was  furnished  for  three  years?  I  will  not  stop  to  depict 
what  everyone  can  imagine;  but  this  is  certain,  England  would 
topple  headlong,  and  carry  the  whole  civilized  world  with  her. 
No,  you  dare  not  make  war  on  cotton.  No  power  on  earth 
dares  to  make  war  on  it — Cotton  is  King. " 

Besides  this  dependence  of  Great  Britain  upon  the  South  for 
cotton,  British  bankers  loaned  heavily  to  the  Southerners. 
Britons  and  Southerners  held  a  common  dislike  of  the  tariff 
imposed  by  the  Northerners,  which  had  for  one  of  its  purposes  to 
compel  the  Southerners  to  buy  their  machinery,  clothing,  and 
foodstuffs  in  the  North  and  consequently  to  sell  the  cotton  there 
as  well.  Moreover,  the  goods  from  the  North  and  the  cotton 
from  the  South  would  have  to  be  shipped  in  New  England 
vessels,  for  the  coastwise  trade  was  not  open  to  foreign  ships. 
Great  Britain  and  the  Confederacy  had,  then,  mutual  and  recip- 
rocal economic  interests.  Traditionally,  it  was  with  the  Yankees 
that  Great  Britain  had  had  friction.  This  was  true  in  the 
Revolution,  in  the  War  of  1812,  in  the  relations  with  Canada,  in 
the  northeastern  fisheries,  in  the  rivalry  for  sea  carrying  trade, 
and  in  a  prospective  competition  in  manufactures. 

When  hostilities  opened  in  April,  1861,  the  Confederacy  had 
no  navy  and  had  no  means  with  which  to  build  a  navy.  If  the 
cotton  was  to  find  a  market  and  if  the  Confederacy  was  to 
obtain  military  supplies,  a  navy  would  be  a  matter  of  prime 
necessity.  James  D.  Bulloch  of  Georgia  had  been  a  lieutenant 
in  the  United  States  Navy;  and  the  government  at  Montgomery 
decided  upon  him  as  a  competent  man  to  undertake  the  acquisi- 
tion of  a  navy  in  England.  He  reached  Liverpool  on  June  4, 1861. 
Before  the  end  of  the  month  and  before  his  government  had 
placed  any  funds  in  Europe,  he  had  contracted  with  William  C. 
Miller  and  Sons  of  Liverpool  for  the  building  of  the  cruiser 
"Oreto, "  afterward  famous  as  the  "  Florida. "  Fawcett,  Preston 
and  Co.  of  the  same  port  agreed  to  furnish  the  engines.  Within 


THE  TREATY  OF  WASHINGTON,   1871  279 

another  month,  he  had  contracted  with  Lairds  at  Birkenhead  to 
build  "No.  290,"  afterward  the  "Alabama."  Bulloch  con- 
tracted with  Lairds  in  his  own  name  as  a  private  individual.1 
Fraser,  Trenholm  and  Co.,  fiscal  agents  of  the  Confederacy, 
furnished  the  security. 

Bulloch  explained  later  that  it  was  not  the  object  of  his 
government  to  obtain  one  or  two  ships  merely,  but  "to  get 
ships  and  naval  supplies  without  hindrance  as  long  as  the  war 
lasted. "  2  He  acted  with  prudence  and  caution  and  he  desired 
to  do  nothing  in  violation  of  British  law.  He  engaged  as  his 
legal  adviser  F.  S.  Hull,  "who  piloted  me  safely,"  says  Bulloch, 
"through  the  mazes  of  the  Foreign  Enlistment  Act."  With 
reference  to  this  act,  the  crafty  solicitor  furnished  the  following 
rules  for  Bulloch's  guidance. 

"i.  It  is  no  offense  (under  the  Act)  for  British  subjects  to 
equip,  etc.  a  ship  at  some  country  without  her  Majesty's  domin- 
ions, though  the  intent  be  to  cruise  against  a  friendly  State. 

"2.  It  is  no  offence  for  any  person  (subject  or  no  subject) 
to  equip  a  ship  within  her  Majesty's  dominions,  if  it  be  not  done 
with  the  intent  to  cruise  against  a  friendly  State. 

"3.  The  mere  building  of  a  ship  within  her  Majesty's  domin- 
ions by  any  person  (subject  or  no  subject)  is  no  offence,  whatever 
may  be  the  intent  of  the  parties,  because  the  offence  is  not  the 
building  but  the  equipping. 

"  Therefore  any  shipbuilder  may  build  any  ship  in  her  Majesty's 
dominions,  provided  he  does  not  equip  her  within  her  Majesty's 
dominions,  and  he  has  nothing  to  do  with  the  acts  of  the  pur- 
chasers done  within  her  Majesty's  dominions  without  his  con- 
currence, nor  without  her  Majesty's  dominions  even  with  his 
concurrence. "  3 

In  connection  with  this  opinion,  Bulloch  states  that  he  always 
kept  the  foregoing  deductions  rigidly  in  mind  and  that  he  took 
every  precaution  for  the  protection  of  the  builders  and  for  safe- 
guarding the  ships  against  forfeiture.  "No  ship  was  ever 

1  Bulloch,  Secret  Service,  I.:  60. 

2  Ibid.,  I:  65. 

3  Ibid.,  I.:  67. 


280  LEADING  AMERICAN  TREATIES 

supplied  with  any  portion  of  her  equipment  within  her  Majesty's 
dominions,  nor  was  the  builder  or  vendor  of  any  ship  employed 
to  assist  in  the  equipment  without  her  Majesty's  dominions. "  l 
By  complying  with  the  letter  of  the  Foreign  Enlistment  Act, 
Bulloch  was  able  to  make  of  British  ports  naval  bases  for  the 
Confederacy;  those  ports  furnished  the  shipyards  and  the  ar- 
senals. 

The  foreign  enlistment  act  had  been  passed  in  1819,  at  the 
time  when  the  former  colonies  of  Spain  were  achieving  their 
independence.  Its  chief  purpose  was  to  prevent  the  agents  of 
these  potential  states  from  delivering  letters  of  marque  and 
reprisal  to  British  vessels  so  that  they  might  go  out  and  capture 
Spanish  merchantmen.  No  forfeiture  of  a  vessel  had  ever 
been  decreed  under  the  act.  It  had  been  permitted  to  slumber 
undisturbed  on  the  statute  books. 

The  American  minister  in  London,  Charles  Francis  Adams, 
protested  at  the  Foreign  Office  against  allowing  the  "Oreto" 
and  the  "No.  290,"  building  at  Liverpool,  to  leave  port.  He 
fairly  bombarded  the  Foreign  Office  with  depositions  and  evi- 
dence on  the  hostile  purpose  of  those  vessels.  Earl  Russell 
replied  by  submitting  a  report  of  the  British  commissioners  of 
customs  showing  that  the  "Oreto"  was  pierced  for  four  guns  but 
that  she  had  taken  nothing  on  board  but  coal  and  ballast,  that 
the  expense  of  her  construction  had  been  paid,  and  that  the 
builders  believed  that  she  was  destined  for  the  service  of  the 
Italian  government.2 

On  March  22,  1862,  the  "Oreto"  sailed  from  Liverpool,  under 
British  registry,  with  clearance  papers  for  Palermo  and  Jamaica 
in  ballast.  She  carried  a  crew  of  fifty-two,  all  British  except  for 
two  or  three.3  She  sailed  for  Nassau  as  did  the  schooner  "Prince 
Alfred"  from  London  with  her  armament  and  stores  as  cargo. 
The  American  consul  instituted  proceedings  against  the  "Oreto" 
in  the  vice  admiralty  court  at  Nassau;  she  was  seized  temporarily, 
and  then  restored.  Both  vessels  proceeded  to  Green  Cay,  a 

'Bulloch,  Secret  Service,  I.:  68. 
'Diplomatic  Correspondence,  1862:  40. 
'Ibid,  1862:  66. 


THE  TREATY  OF  WASHINGTON,  1871  281 

desert  island  about  sixty  miles  from  Nassau.  There  the  "  Oreto  " 
took  on  her  armament,  changed  her  name  to  "Florida,"  hoisted 
the  Confederate  flag,  and  put  to  sea. 

Repeatedly  she  took  on  coal  in  British  ports  in  excess  of  what 
would  be  necessary  to  carry  her  to  the  nearest  port  of  her  own 
country  or  some  nearer  destination.  She  also  took  on  a  supply  of 
coal  with  the  full  knowledge  and  consent  of  the  port  officials  at 
Barbadoes  without  allowing  three  months  to  lapse  since  her  last 
coaling  in  a  British  port.  Both  of  these  rules  had  been  incor- 
porated in  the  instructions  from  the  British  government,  January 
31,  I862,1  for  the  guidance  of  port  authorities  in  dealing  with 
belligerent  vessels.  Only  once  did  the  "Florida"  touch  a  Confed- 
erate port,  and  that  was  at  Mobile  in  1862.  She  enlisted  men  at 
New  Providence,  British  West  Indies,  and  repeatedly  she  re- 
mained in  port  more  than  twenty-four  hours.  She  captured 
three  Yankee  merchantmen;  fitted  them  out  with  guns,  officers, 
and  men;  commissioned  them  as  tenders;  and  these  received  the 
hospitalities  of  Confederate  vessels  in  British  ports.2  Over- 
coming nigh  insuperable  difficulties,  even  to  combatting  yellow 
fever  among  the  crew,  the  "Florida"  in  her  career  up  to  the  time 
of  her  capture  in  the  harbor  of  Bahia,  Brazil,  1864,  burned 
or  bonded  over  forty  vessels  carrying  the  United  States 


The  "No.  290"  was  launched  on  May  15, 1862,  and  christened 
the  "Enrica."  On  June  15,  she  took  her  trial  trip.3  She  re- 
turned, was  taken  into  dock  to  complete  her  outfit  and  to  take  on 
board  coal  and  stores.  Bulloch  employed  Captain  Butcher,  then 
serving  with  the  Cunard  Line,  to  take  the  "Enrica"  to Terceira. 
Captain  Semmes  had  taken  the  C.  S.  S.  "Sumter"  into  Gibral- 
tar, where  he  was  being  watched  by  two  union  vessels.  Rather 
than  assume  any  risks,  Bulloch  ordered  that  the  "Sumter" 
be  sold  to  an  English  firm.  This  was  done  technically;  the 
"Sumter"  was  then  brought  to  the  Mersey,  flying  the  British 
and  there  converted  into  a  blockade  runner.  Captain 

1  Geneva  Arbitration,  I.:  226. 

JIbid.,  I:  133  S. 

'Bulloch,  Secret  Service,  I.:  230. 


282  LEADING  AMERICAN  TREATIES 

Semmes  was  thereupon  ordered  to  take  command  of  the  "  En- 
rica"  at  Terceira. 

The  arguments  of  Adams  had  become  so  persistent  and  con- 
vincing at  the  Foreign  Office,  that  on  Saturday,  July  26,  1862, 
Bulloch  received  information  "  from  a  private  but  most  reliable 
source,  that  it  would  not  be  safe  to  leave  the  ship  in  Liverpool 
another  forty-eight  hours. "  l  He  decided  accordingly  to  make 
an  all  day  trial  trip  on  Tuesday  and  so  informed  the  Lairds.  He 
ordered  Captain  Butcher  to  ship  a  few  more  hands  and  lay  in 
some  additional  coal  and  stores.  On  Monday  the  "Enrica" 
came  out  of  dock;  on  Tuesday  morning  she  got  under  weigh; 
the  invited  guests  on  board.  The  guests  returned  in  a  tug  at 
three  in  the  afternoon;  but  the  "Enrica,"  never;  she  was  on  her 
way  to  the  Azores,  without  registry  and  without  clearance 
papers.  During  those  same  days,  on  the  Thames,  at  London, 
lay  a  barque,  the  "Agrippina,"  which  took  on  board  gun-car- 
riages, guns,  shot,  and  all  necessary  munitions  and  equipment, 
and  sailed  for  desolate  Praya  Bay.  There,  on  the  east  side  of 
Terceira,  the  two  vessels  met.  The  " Enrica"  took  on  board  her 
equipment,  mounted  her  guns,  changed  her  name  to  "Alabama, " 
and,  on  August  24,  1863,  sailed  out,  flying  the  Confederate 
ensign,  Captain  Semmes  in  command. 

In  May,  1863,  Semmes  wrote  from  Bahia  to  Bulloch,  "  We  are 
having  capital  success.  That  'little  bill'  which  the  Yankees 
threaten  to  present  to  our  Uncle  John  Bull,  for  the  depreda- 
tions of  the  Alabama,  is  growing  apace,  and  already  reaches 
$3,100,000."  She  never  touched  at  a  Confederate  port;  and 
she  had  no  difficulty  in  replenishing  her  supply  of  coal  and  food 
from  the  merchantmen  she  captured.  She  followed  purposely 
the  shipping  lanes  in  every  sea  and  every  climate.  She  remained 
as  long  as  it  was  deemed  prudent  in  the  icy  fogs  off  the  New- 
foundland Bank;  then  she  harried  and  burned  amid  the  steaming 
moisture  of  the  West  Indies;  next,  she  might  be  heard  of  in  the 
Pacific;  and  she  surprised  American  shipping  in  the  China  Sea 
and  in  the  Strait  of  Malacca. 

'Bulloch,   Secret   Service,   I.:    238. 
'Ibid.,  I.:  267. 


THE  TREATY  OF  WASHINGTON,  1871  283 

From  English  vessels  that  she  met,  the  "Alabama"  received 
every  courtesy  and  rousing  cheers,  for  was  she  not  English  built, 
were  there  not  Englishmen  on  board,  had  she  not  outwitted  even 
the  Yankee,  and  was  she  not  driving  the  Yankee  merchant 
marine  from  the  seas?  The  President  of  the  Board  of  Trade, 
Milner  Gibson,  stated  in  a  speech  at  Ashton-under-Lyne,  Janu- 
ary 20,  1864,  that  for  the  year  1863-64,  the  number  of  British 
ships  clearing  had  increased  to  14,000,000  tons  as  against 
7,000,000  for  all  foreign  tonnage  and  he  gave  the  decrease  in 
American  tonnage  between  Great  Britain  and  the  United  States 
at  about  forty-seven  percent.1 

The  "Alabama"  took  on  coal  at  Singapore.  American  mer- 
chantmen had  been  sufficiently  driven  from  the  Indian  Ocean,  so 
she  had  to  coal  again,  within  three  months,  at  Capetown.  At 
Capetown,  too,  her  tender,  the  "Tuscaloosa,"  was  received  as  a 
belligerent  vessel,  although  she  had  been  an  old  Yankee  mer- 
chantman, captured  at  sea,  never  condemned  by  a  prize  court, 
and  commissioned  at  sea  as  well.  The  "Alabama's"  last  cruise 
took  her  through  the  Atlantic,  along  the  coast  of  Africa  and 
Europe  to  Cherbourg,  France.  There  she  accepted  the  challenge 
of  the  union  vessel,  the  "Kearsarge,"  and  after  a  gallant  fight, 
went  down,  June  19,  1864. 

Since  his  visit  to  Terceira  in  August,  1862,  when  he  saw  the 
"Alabama"  safely  started  on  her  mission,  Bulloch  had  devoted 
his  energies  to  the  buying  of  vessels,  of  naval  supplies,  and  to 
the  so-called  Laird  ironclads.  It  had  become  the  purpose  of  the 
Confederacy  to  build  a  whole  fleet  of  armored  vessels  capable  of 
opening  and  defending  the  ports  under  blockade.  The  escape 
of  the  "Florida"  and  the  "Alabama"  had  increased  the  vigi- 
lance of  the  American  consul  in  Liverpool,  T.  H.  Dudley,  and  of 

1  Table  of  Transfers  of  American  shipping  to  Englishmen. 

Year  Vessels  Tonnage 

1858  33  12,684 

1859  49  21,308 

1860  41  13,638 

1861  126  71.673 

1862  135  64,578 

1863  348  252,579 

1864  166  92,052 


284  LEADING  AMERICAN  TREATIES 

the  American  minister  in  London,  Mr.  Adams.  Lord  Russell 
acknowledged  repeatedly  that  the  foreign  enlistment  act  might 
be  evaded  by  subtle  contrivances;  "but  her  Majesty's  govern- 
ment cannot,  on  that  account  go  beyond  the  letter  of  the  exist- 
ing law. "  l  For  him  and  for  British  public  opinon  at  the  time 
there  was  no  international  law  on  the  obligations  of  neutrals. 
He  had  no  vision  of  what  might  have  been  the  effect  upon 
British  commerce  in  the  Boer  War  had  President  Kruger  been 
able  to  obtain  a  "Florida"  and  an  "Alabama"  in  the  United 
States  or  in  Germany;  or  in  the  Great  War  had  Germany  been 
able  to  obtain  cruisers  from  the  United  States  in  1916  under 
similar  circumstances  to  the  "Alabama."  Adams  pointed  to 
the  handwriting  on  the  wall;  and  several  Britons  could  read 
it;  among  them  Cobden,  Sir  George  C.  Lewis  and  W.  E.  Forster; 
but  the  cabinet  could  not.  Said  Lord  Palmerston,  premier,  in 
the  House  of  Commons,  July  23,  1863,  "I  cannot,  in  the  ab- 
stract, concur  with  my  honourable  friend  (Cobden)  in  thinking 
there  is  any  distinction  in  principle  between  muskets,  gunpowder, 
bullets  and  cannon  on  the  one  side,  and  ships  on  the  other." 
He  maintained  that  merchants  had  the  right  to  supply  "one  of 
the  belligerents,  not  only  with  arms  and  cannon,  but  also  with 
ships  destined  for  warlike  purposes. " 

The  Laird  iron-clads  were  in  an  advanced  stage  of  construc- 
tion, when  Adams  and  Dudley  decided  to  test  their  status  and 
that  of  similar  vessels  under  the  foreign  enlistment  act  before  a 
British  judge  and  jury.  For  this  purpose  the  "Alexandra"  was 
chosen.  She  had  been  built  by  Miller  and  Co.,  who  had  also 
built  the  "Florida. "  She  had  been  launched  on  the  day  that  the 
Danish  Princess  Alexandra  entered  London,  previous  to  her 
marriage  to  the  Prince  of  Wales.  And  she  was  lying  in  dock  to 
have  her  engines  placed  by  Sillim  and  others  of  Fawcett  and  Co. 
On  March  28,  1863,  Dudley  made  a  formal  affirmation  that  he 
had  reason  to  believe  that  the  "Alexandra"  was  intended  for  the 
Confederacy  in  violation  of  the  foreign  enlistment  act.  This 
affirmation  together  with  several  affidavits  were  forwarded  to 

1  Diplomatic  Correspondence,  1862:  223. 
'Hansard,  172:  1269. 


THE  TREATY  OF  WASHINGTON,   1871  285 

Adams,  who  presented  them  to  Lord  Russell.  Adams  was 
determined  to  push  the  case  even  though  the  officers  of  the 
crown  could  not  be  moved  to  act,  and  for  that  reason  had  asked 
for  and  obtained  the  services  of  William  M.  Evarts.  But  the 
cabinet  yielded. 

On  April  5,  1863,  the  surveyor  of  customs  seized  the 
"Alexandra."  On  June  22  the  case  of  the  Attorney  Gen- 
eral vs.  Sillim  and  others,  claiming  the  "Alexandra,"  came 
up  before  the  court  of  exchequer  at  Westminster,  the  Lord 
Chief  Baron,  Sir  Frederick  Pollock,  presiding.  Distinguished 
counsel  appeared  on  both  sides.  For  the  crown,  Sir  William 
Atherton,  her  Majesty's  Attorney  General;  Sir  Roundell  Palmer, 
her  Majesty's  Solicitor  General,  and  Sir  Robert  Phillimore.  For 
the  owners  Sir  Hugh  Cairns,  J.  B.  Harslake,  George  Mellish,  and 
James  Kemplay.  The  information  contained  ninety-eight 
counts,  charging  that  the  defendants  did  attempt  or  endeavor 
to  equip,  furnish,  and  fit  out  the  vessel  to  serve  against  a  power 
at  peace  with  Great  Britain.  The  arming  of  the  vessel  was  not 
charged  at  all.  The  vessel  had  been  built  under  contract  with 
Charles  K.  Prioleau  of  Liverpool  at  his  own  cost  and  risk.  When 
seized  the  engineers,  Sillim  and  others,  had  claimed  her  as  being 
in  their  possession.  The  character  of  her  design  and  construc- 
tion proved  that  she  had  a  warlike  destination.  Evidence 
revealed  that  Bulloch  had  shown  keen  interest  in  her  construc- 
tion as  had  other  Confederate  naval  and  military  officers.  A 
good  deal  of  information  was  revealed  about  the  "Florida"  and 
the  "Alabama;"  but  it  could  have  only  a  moral  effect  as  far  as 
the  "  Alexandra  "  was  concerned.  It  was  shown  that  the  builders 
had  stated  in  conversation  that  she  was  intended  for  the  Con- 
federate service. 

In  charging  the  jury,  the  judge  read  passages  from  Story  and 
Kent  to  show  that  powder  and  arms  might  be  shipped  by  the 
nationals  of  a  neutral  country  to  belligerents.  Then  he  asked, 
"Why  should  ships  be  an  exception?  I  am  of  opinion,  in  point 
of  law,  they  are  not. "  He  pointed  out  that  it  was  admitted  that 
the  "Alexandra"  was  not  armed.  "It  appears  to  me"  he  con- 
tinued "  that  if  true  that  the  'Alabama'  sailed  away  from  Liver- 


286  LEADING  AMERICAN  TREATIES 

pool  without  any  arms  at  all  as  a  mere  ship  in  ballast,  and  that 
her  armament  was  put  on  board  at  Terceira,  which  is  not  hi  her 
Majesty's  dominions,  then  the  foreign  enlistment  act  was  not 
violated  at  all. "  The  jury  returned  a  verdict  immediately  for 
the  defendants.1  C.  F.  Adams  Jr.  reports  that  the  listeners  hi 
the  courtroom  cheered.  The  counsel  for  the  crown  tendered  a 
bill  of  exceptions,  on  which  the  case  was  appealed  to  the  court  of 
exchequer  chamber  and  finally  to  the  House  of  Lords;  the  crown 
losing  hi  every  instance. 

Charles  Francis  Adams  had  now  exhausted  all  lawful  means 
provided  by  Great  Britain  to  save  the  United  States  from  having 
its  rights  infringed  by  Great  Britain  allowing  her  ports  to  be- 
come naval  bases  for  the  enemy,  and  to  save  Britain  herself  in 
some  future  day  when  the  tables  should  be  turned,  to  say  nothing 
of  the  award  of  $15,500,000  by  the  Geneva  tribunal,  which 
Great  Britain  had  to  pay  because  she  did  not  have  adequate 
legislation  upon  her  statute  books.  Like  a  good  diplomat, 
Adams,  cheerful  and  undaunted,  expressed  his  appreciation  of 
the  efforts  of  the  British  government  in  the  case  of  the  "Alex- 
andra" and  proceeded  to  bring  every  possible  influence  to  bear 
upon  Lord  John  Russell,  who  held  the  key  to  the  situation. 

By  June,  1863,  the  fortunes  of  the  Confederacy  had  reached 
their  height  both  at  home  and  abroad.  It  looked  as  though  there 
could  be  no  restrictions  placed  upon  the  construction  of  naval 
vessels  in  Great  Britain.  Indeed,  on  July  4,  1863,  the  first  of 
the  Laird  ironclads  took  the  water.  In  the  latter  part  of  1862 
Mason  and  Slidell  had  promoted  a  proposal  by  Napoleon  III  to 
the  courts  of  Britain  and  Russia  to  join  in  offering  mediation  in 
the  American  struggle,  with  an  armistice  of  six  months  as  a 
preliminary.  The  Czar  refused  to  join  and  the  British  reply 
meant  the  same  as  a  refusal.  In  June,  1863,  Napoleon  III  had 
invited  two  members  of  the  House  of  Commons,  Lindsay  and 
Roebuck,  to  dine  with  him  at  the  Tuileries.  He  declared  him- 
self ready  to  cooperate  with  Britain  in  an  immediate  recognition 
of  the  independence  of  the  Confederate  States.  And  Roebuck 
was  to  force  the  hand  of  the  cabinet  by  a  motion  to  that  effect  hi 

'Diplomatic   Correspondence-,    1863:   281. 


THE  TREATY  OF  WASHINGTON,   1871  287 

the  House  of  Commons.  Fortunately,  Roebuck  bungled.  The 
Emperor  denied  the  statements  imputed  to  him.  And  Roebuck 
withdrew  his  motion  on  July  13. 

In  the  meantime  Adams  had  presented  to  Lord  Russell  the 
claims  of  American  citizens  for  depredations  committed  by  the 

Alabama' '  and  the  Florida. ' '  Russell  disclaimed  all  responsibil- 
ity  for  the  acts  of  these  vessels.1  However,  telling  events  in  Amer- 
ica had  occurred.  On  the  morning  of  July  1 6 ,  Adams  received  news 
of  the  victory  at  Gettysburg  and  three  days  later  came  the  news 
of  the  surrender  of  Vicksburg.  The  emancipation  proclamation 
had  received  the  most  vindictive  denunciation  by  the  press  in  the 
latter  part  of  i862;2  but  this  hi  itself  caused  wide  reading  of  the 
proclamation  and  a  revulsion  of  popular  feeling  against  the 
institution  of  slavery.  After  Vicksburg  and  Gettysburg  this 
feeling  nurtured  by  Cobden  and  Bright  became  more  manifest. 
But  night  and  day  shifts  worked  on  the  iron-clads  in  the  Mersey. 
The  Confederate  agents  attempted  to  conceal  their  trepidation 
by  transferring  the  contract  to  a  French  banker,  Bravay,  who 
professed  to  act  for  the  Egyptian  government.  They  paid 
Lairds  a  gratuity  of  £5,000  for  the  consent  to  this  transfer.3 

In  August  Adams  became  the  guest  of  the  Duke  of  Argyll  at 
Inverary,  a  union  sympathizer.  The  Duke  was  a  member  of  the 
cabinet  and  believed  that  the  iron-clads  were  built  on  French 
account.  Adams  disillusioned  him.  That  evening  the  Duke 
wrote  letters;  one  may  have  gone  to  Lord  Russell.  When  Adams 
returned  to  London  Russell  desired  earnestly  to  comply  with 
whatever  the  international  obligations  demanded.4  On  Septem- 
ber 4  Consul  Dudley  notified  Adams  that  one  of  the  iron-clads 
was  about  to  depart.  Adams  made  another  appeal  to  Russell. 
Russell  replied  that  there  was  no  legal  evidence  against  M. 
Bravay's  claim  and  that  the  government  could  not  interfere.5 

On  September  5,  1863,  Adams  made  his  memorable  reply,  in 
which  he  said,  "I  trust  I  need  not  express  how  profound  is  my 

1  Diplomatic  Correspondence,  1863:  316. 

2  See  C.  F.  Adams,  Charles  Francis  Adams,  chapter  16. 
8  Adams,  Treaty  of  Washington:  67,  footnote. 

4C.  F.  Adams,  Charles  Francis  Adams:  340. 
6  Diplomatic  Correspondence,  1863:  362. 


288  LEADING  AMERICAN  TREATIES 

regret  at  the  conclusion  to  which  her  Majesty's  government  have 

arrived It  would  be  superfluous  in  me  to  point  out  to 

your  lordship  that  this  is  war.  No  matter  what  may  be  the 
theory  adopted  of  neutrality  in  a  struggle,  when  this  process  is 
carried  on  hi  the  manner  indicated,  from  a  territory  and  with  the 
aid  of  the  subjects  of  a  third  party,  that  third  party  to  all  intents 
and  purposes  ceases  to  be  neutral. "  l  On  September  8,  a  short 
article  appeared  in  the  Morning  Post  announcing  that  the  gov- 
ernment had  decided  to  detain  the  vessels.  The  government  did 
so;  and  the  bonds  of  the  Confederacy  fell  fourteen  points.  In 
order  to  avoid  another  case  like  the  "Alexandra,"  the  govern- 
ment bought  the  Laird  iron-clads  for  £220,000;  the  original 
contract  price  had  been  £i87,5oo.2  James  Russell  Lowell  said 
later  of  this  victory  of  Adams,  "  None  of  our  generals  in  the  field, 
not  Grant  himself,  did  us  better  or  more  trying  service  than  he  hi 
his  forlorn  outpost  of  London. " 

Englishmen  began  to  subdue  their  commercial  fervor.  The 
ship  owners  of  Liverpool  petitioned  Parliament  to  pass  an  ade- 
quate foreign  enlistment  act.  No  one  put  the  idea  more  point- 
edly hi  the  House  of  Commons  than  did  the  head  of  the  banking 
house  of  Baring  Brothers  on  May  13,  1864:  "Under  the  present 
construction  of  our  municipal  law  there  is  no  necessity  that  a 
belligerent  should  have  a  port  or  even  a  seashore.  Provided 
she  has  money,  or  that  money  is  supplied  to  her  by  a  neutral,  she 
may  fit  out  vessels,  and  those  vessels  need  not  go  to  the  country 
to  which  they  are  said  to  belong,  but  may  go  about  the  seas 
dealing  destruction  to  British  shipping  and  property. "  Succeed- 
ing events  pointed  the  way.  The  House  of  Representatives 
passed  a  bill,  July,  1866,  designed  to  remove  the  prohibition 
against  selling  ships  of  war  to  foreign  citizens  or  governments  at 
peace  with  the  United  States.  The  unrest  in  Europe  over  the 
former  Danish  Duchies  and  finally  the  shadow  of  the  Franco- 
Prussian  War  led  Parliament,  in  1870,  to  pass  stringent  modifica- 
tions of  the  foreign  enlistment  act. 

This  change  of  conscience  in  Great  Britain  added  to  the 

1  Diplomatic  Correspondence,  1863:  367. 

*  Adams,  Treaty  of  Washington:  67,  footnote. 


THE  TREATY  OF  WASHINGTON,   1871  289 

strength  of  the  requests  by  Adams  for  compensation  for  the 
damages  committed  by  the  cruisers.  Great  Britain  refused 
consistently  until  1868  to  assume  any  responsibility.  It  needs 
be  said  that  the  United  States  befogged  the  issue  by  demanding 
reimbursement  for  damages  incurred  by  the  British  proclama- 
tion of  neutrality,  which  greatly  encouraged  the  Confederates, 
for  the  cost  of  chasing  the  cruisers,  and  for  loss  incurred  by  the 
transfer  of  vessels  to  other  flags.  These  constituted  the  so-called 
"indirect  damages"  or  "national  injuries." 

On  August  27,  1866,  Seward  sent  to  Adams  one  of  the  most 
important  papers  on  this  subject.  A  change  of  ministry  had 
taken  place.  The  Liberals  had  gone  out  and  the  Conservatives 
with  Lord  Derby  at  the  head  had  come  in.  Lord  Stanley  took 
charge  of  the  Foreign  Office.  Adams  was  to  present  "in  a  re- 
spectful and  earnest  manner"  to  Stanley  a  long  list  of  claims  of 
American  citizens  for  depredations  committed  by  the  cruisers. 
Adams  was  to  point  out  that,  "While  as  yet  the  civil  war  was 
undeveloped,  and  the  insurgents  were  without  any  organized 
military  force  or  a  treasury,  and  long  before  they  pretended  to 
have  a  flag,  or  to  put  either  an  armed  ship  or  even  a  merchant 
vessel  upon  the  sea,  her  Majesty's  government,  acting  precipi- 
tately, as  we  have  always  complained,  proclaimed  the  insurgents 
a  belligerent  power,  and  conceded  to  them  the  advantages  and 
privileges  of  that  character,  and  thus  raised  them  in  regard  to  the 
prosecution  of  an  unlawful  armed  insurrection  to  an  equality 
with  the  United  States.  This  government  has  not  denied  that 
it  was  within  the  sovereign  authority  of  Great  Britain  to  assume 
this  attitude;  but,  on  the  other  hand,  it  insisted  in  the  beginning, 
and  has  continually  insisted,  that  the  assumption  of  that  atti- 
tude, unnecessarily  and  prematurely,  would  be  an  injurious 
proceeding  for  which  Great  Britain  would  immediately  come 
under  a  full  responsibility  to  justify  it,  or  to  render  redress  and 
indemnity. "  Adams  should  then  mention  the  inadequacy  of  the 
laws  of  Great  Britain  to  properly  maintain  her  neutrality. 
While  insisting  upon  the  claims  he  could  propose  that  if  Great 
Britain  had  any  counter  claims  the  United  States  would  be 
willing  to  have  them  considered,  and  thus  remove  at  one  time 


290  LEADING  AMERICAN  TREATIES 

"by  one  comprehensive  settlement,  all  existing  causes  of  mis- 
understanding. "  l 

On  November  30, 1866,  Lord  Stanley  replied  to  the  communi- 
cation. On  the  subject  of  liability  incurred  by  the  hasty  recog- 
nition of  the  belligerency  of  the  Confederates,  he  maintained 
that  it  was  the  President  who  had  first  recognized  their  belli- 
gerency by  proclamation  of  a  blockade.  And  he  rested  his 
conclusion  upon  the  decision  of  the  Supreme  Court  in  the  case  of 
the  "Hiawatha"  and  of  the  highest  court  hi  the  District  of 
Columbia  hi  the  case  of  the  "Tropic  Wind. "  Lincoln  issued  his 
proclamation  of  a  blockade  on  April  19,  1861,  and  the  Queen's 
proclamation  of  neutrality  bore  the  date  of  May  13,  1861.  On 
this  point  Lord  Stanley  held  "no  reference  to  arbitration  is 
possible. "  On  the  score  of  the  damages  inflicted  by  the  escaped 
cruisers,  he  refused  to  admit  liability.  But  he  expressed  that 
her  Majesty's  advisers  were  "fully  alive  to  the  inconvenience 
which  arises  from  the  existence  of  unsettled  claims  of  this  charac- 
ter between  two  powerful  and  friendly  governments 

they  will  not  be  disinclined  to  adopt  the  principle  of  arbitration, 
provided  that  a  fitting  arbitrator  can  be  found,  and  that  an 
agreement  can  be  come  to  as  to  the  points  to  which  arbitration 
shall  apply."  2 

Seward  refused  to  yield  on  the  indirect  claims.  Another 
year  passed  with  no  result  apparent  but  an  increase  in  the  ill 
will  between  the  two  countries.  Irishmen,  who  had  become 
naturalized  Americans,  went  back  to  foment  trouble  among 
their  countrymen,  which  caused  disputes  about  the  rights  under 
naturalization.  The  North  Atlantic  fisheries  reverted  to  an 
unsettled  state  after  the  abrogation  in  1866  by  the  United 
States  of  the  reciprocity  treaty  of  1854.  Possibilities  of  hostility 
existed  hi  the  unsettled  boundary  relating  to  the  island  of  San 
Juan.  On  January  13,  1868,  Seward  proposed  again  the  arbi- 
tration of  all  claims.  Shortly  afterward,  Adams  resigned 
as  minister  and  was  succeeded  by  Reverdy  Johnson  of 
Maryland. 

1  Diplomatic   Correspondence,    1866:    177. 
*Ibid.,  1867:  184. 


THE  TREATY  OF  WASHINGTON,   1871  291 

Both  Johnson  and  Seward  became  eager  to  achieve  a  settle- 
ment of  the  disputes  with  Great  Britain  during  their  tenure  of 
office.  Several  agreements  were  signed,  not  one  was  ratified; 
among  them  was  one  on  claims,  January  14,  1869,  the  so-called 
Johnson-Clarendon  Convention.  The  "Alabama"  claims  were 
not  expressly  mentioned.  All  claims  should  be  submitted  to  a 
board  of  four.  Should  a  claim  fail  to  obtain  a  majority  vote,  the 
commissioners  could  agree  upon  an  umpire;  and  if  they  failed  to 
agree,  the  umpire  should  be  chosen  by  lot.1  This  haphazard 
method  would  hardly  permit  a  careful  consideration  of  a  man's 
qualifications  to  pass  upon  a  difference  nor  would  it  secure 
harmony  in  the  various  decisions  on  points  in  dispute. 

When  the  convention  reached  the  Senate,  Sumner  opposed 
it  because  it  contained  "not  one  word  of  regret,"  because  it 
provided  for  the  settlement  of  private  claims  only,  and 
because  Great  Britain  assumed  no  responsibility  for  conceding 
belligerency  to  the  Confederacy,  nor  for  building  and  equip- 
ping the  cruisers.  The  private  claims  he  estimated  at  about 
$15,000,000.  But  the  years  of  war  and  costly  sacrifice  which 
England  had  added  by  her  acts  could  not  be  estimated.  He 
mentioned  $110,000,000  for  the  national  loss  of  the  merchant  ma- 
rine, due  to  the  transfer  of  vessels  to  British  ownership;  but  that 
was,  he  contended,  one  of  the  smallest  items.2  The  Senate  re- 
jected the  convention  by  a  vote  of  i  to  44.  Of  course,  the 
strained  relations  between  President  Johnson  and  Congress  must 
be  taken  as  one  of  the  reasons  for  the  decisiveness  of  the  vote. 

When  Grant  became  President,  Hamilton  Fish  succeeded 
Seward  as  Secretary  of  State  and  John  Lothrop  Motley  suc- 
ceeded Reverdy  Johnson  as  minister  to  England.  Because 
Motley  assumed  to  present  the  views  of  the  chairman  of  the 
Senate  committee  on  foreign  relations,  Sumner,  especially  on 
national  claims,  rather  than  those  of  the  Secretary  of  State, 
Fish  had  to  transfer  the  negotiations  to  Washington,  and,  on 
Grant's  insistence,  he  had  to  recall  Motley. 

At  this  stage  an  unofficial  and  exceedingly  helpful  personage 

1  Diplomatic  Correspondence,  1868:  401. 

2  Sumner,  Works,  XIII.:  53. 


292  LEADING  AMERICAN  TREATIES 

brought  his  influence  to  bear.  John  Rose  was  of  Scotch  birth,  but 
he  had  made  a  fortune  and  a  political  reputation  in  Canada.  He 
was  a  member  of  the  ministry  there  and  he  was  serving  as  British 
commissioner  on  the  board  created  by  the  Treaty  of  1863  to 
settle  the  outstanding  Oregon  claims.  He  had  as  such  won  the 
friendship  of  the  counsellor  for  the  United  States,  Caleb  Gush- 
ing. The  two  talked  over  the  "Alabama"  claims  and  agreed  to 
cooperate  hi  bringing  about  a  settlement.  In  June  of  1869 
Gushing  at  Washington  wrote  to  Rose  at  Ottawa  that  he  had 
seen  Secretary  Fish  and  arranged  for  a  meeting.  "I  am  not 
sanguine  of  the  immediate  conclusion  of  such  a  treaty  as  either 
you  or  I  might  desire.  But  I  think  the  tune  has  arrived  to 
commence, "  l 

Rose  came.  At  the  dinner  table  with  Fish  on  July  9,  1869,  the 
first  of  a  series  of  discussions  took  place,  which  resulted  in  the 
Treaty  of  Washington  two  years  later.  Fish  thought  that  the 
time  had  not  arrived  for  a  settlement,  that  Sumner's  speech  on 
the  indirect  claims  had  led  Americans  to  expect  too  much,  and 
that  the  rejection  of  the  Johnson-Clarendon  Convention  for  the 
reasons  given  by  Sumner  had  irritated  the  British.  He  felt  that 
when  the  excitement  should  subside,  if  Great  Britain  would  send 
some  person  of  high  rank  to  express  some  kind  word  of  regret,  a 
settlement  could  then  be  reached.  And  he  outlined  a  scheme 
which  was  the  one  virtually  carried  out.2  Rose  left  immediately 
for  England  to  confer  with  public  men  there,  with  whom  he  had 
no  doubt  been  in  communcation  previously. 

Rose  reported  to  Fish  periodically  on  progress  made  with 
W.  E.  Forster,  John  Bright,  and  Gladstone.  Frequent  exchanges 
of  notes  took  place  between  Fish  and  Edward  Thornton,  the 
British  minister  in  Washington,  but  no  common  basis  for  an 
agreement  could  be  reached.  However,  international  events 
furnished  their  assistance.  Early  in  July,  1870,  the  news  spread 
that  General  Prim  had  offered  the  throne  of  Spain  to  Leopold 
of  Hohenzollem-Sigmaringen;  and  on  July  13,  1870,  Bismarck 
transcribed  the  Ems  telegram.  France  declared  war  on  Prussia, 

1C.  F.  Adams,  Treaty  of  Washington:  123. 

1 J.  C.  Bancroft  Davis,  Mr.  Fish  and  the  Alabama  Claims:  45. 


THE  TREATY  OF  WASHINGTON,   1871  293 

July  19.  On  September  2  Napoleon  III  surrendered  at  Sedan. 
Britain  did  not  know  when  it  might  become  necessary  to  inter- 
vene. The  need  for  having  her  differences  with  the  United 
States  settled  became  greater.  Fish  saw  his  opportunity  and  in- 
serted in  the  President's  annual  message,  December  5,  1870,  a 
regret  that  no  conclusion  had  been  reached  with  Britain  and  a 
recommendation  that  Congress  authorize  the  appointment  of  a 
commission  to  take  proof  of  the  amount  and  the  ownership  of 
claims  and  that  Congress  would  authorize  their  payment,  so 
that  the  government  would  have  the  ownership  and  the  respon- 
sible control  of  all  claims  against  Great  Britain. 

On  January  9,  1871,  Rose  arrived  in  Washington  on  a  confi- 
dential mission.  He  dined  with  Fish  on  the  evening  of  the  same 
day.  Their  conversation  lasted  until  about  three  o'clock  the 
next  morning.  The  Assistant  Secretary  of  State,  J.  C.  Bancroft 
Davis,  was  the  only  other  person  present,  and  he  preserved  a 
memorandum  of  the  leading  points. 

Rose  stated  that  he  had  been  authorized  unofficially  to  ascer- 
tain what  could  be  done  to  settle  all  pending  questions  by  a  joint 
commission  modelled  upon  that  which  negotiated  the  Treaty  of 
Ghent;  and  he  dwelt  upon  the  urgency  of  an  immediate  settle- 
ment. Fish  replied  that  before  he  agreed  to  such  a  commission 
he  wanted  some  assurance  of  its  success  and  asked  if  Britain 
was  ready  to  admit  liability  for  the  "Alabama"  claims.  The 
British  government  would  not  admit  such  liability,  said  Rose; 
but  he  gave  it  as  his  judgment  that  Britain  would  be  willing  to 
submit  the  claims  to  arbitration.  With  his  usual  candor  Fish 
explained  that  it  would  be  useless  to  negotiate  a  treaty  which 
did  not  admit  such  liability,  that  the  almost  unanimous  vote 
of  the  Senate  against  the  Johnson-Clarendon  Convention  re- 
vealed the  opinion  of  that  body  on  the  claims,  and  that  if  Great 
Britain  should  accept  liability  for  the  acts  of  the  "Alabama,"  the 
United  States  might  be  willing  to  submit  the  matter  of  liability 
for  the  acts  of  the  other  cruisers  to  arbitration.  Rose  argued 
long  and  forcibly  against  this  view,  submitting  that  if  the  two 
nations  met  in  commission,  such  a  body  would  not  break  up 
without  reaching  an  agreement,  that  the  Confederates  who 


294  LEADING  AMERICAN  TREATIES 

had  fitted  out  the  "Alabama"  were  now  in  the  full  enjoyment  of 
their  rights  as  American  citizens,  and  that,  therefore,  the  ques- 
tion was  a  domestic  one.  Fish  recognized  that  the  latter  argu- 
ment might  be  a  good  one  if  Great  Britain  had  not  recognized  the 
belligerency  of  the  South.  He  would  not  ask  that  England 
should  humiliate  herself  by  acknowledging  that  her  laws  were 
deficient,  but  she  might  well  feel  that  her  local  officers  had  been 
negligent,  and  that  thereby  the  government  had  become  liable. 
Rose  mentioned,  then,  that  the  British  government  could  not 
take  the  initiative  on  the  "Alabama"  claims,  that  it  would  pro- 
pose a  commission  to  settle  the  San  Juan  boundary,  the  fisheries, 
and  other  Canadian  questions.  To  this  proposal  the  United 
States  might  accede  on  condition  that  the  claims  were  also  to 
be  considered.  Fish  consented.1 

Two  days  later,  January  n,  1871,  Rose  submitted  a  memo- 
randum, covering  the  points  hi  the  conversation,  urging  the  need 
of  a  settlement  before  the  approaching  fishing  season,  and  before 
the  time  of  the  Parliament  should  be  taken  up  with  Russia  and 
the  Black  Sea  question,  with  the  relations  of  Prussia  to  Luxem- 
burg, and  with  the  problems  growing  out  of  the  Franco-Prussian 
War.  "Supposing,  then,"  said  Rose,  "that  an  attempt  was 
made  to  have  Sir  Edward  Thornton  authorized  by  cable,  now, 
to  propose  such  a  commission  with  reference  to  all  other  sub- 
jects— omitting  the  "Alabama" — and  that  the  United  States 
were  to  say  they  would  only  agree,  provided  the  Commis- 
sioners were  authorized  to  deal  with  the  "Alabama"  and  all  other 
subjects  as  well  as  with  a  view  to  a  comprehensive  settlement; — 
might  not  the  English  Commissioners  come  out  at  once, " 

The  negotiations  having  reached  this  stage,  Fish  thought  it 
best  to  lay  Rose's  proposals  before  Sumner,  chairman  of  the 
Senate  committee  on  foreign  relations.  Sumner  deliberated 
for  two  days  and  then  replied,  January  17,  1871,  that  he  ap- 
proved the  idea  that  all  sources  of  irritation  between  the  United 
States  and  England  should  be  removed  forever.  As  a  prelimi- 
nary step  he  advocated  the  withdrawal  of  the  British  flag  from 

1  Davis,  Mr.  Fish  and  the  Alabama  Claims;  59. 
'Moore,  International  Arbitrations,  I:  523. 


THE  TREATY  OF  WASHINGTON,   1871  295 

the  western  hemisphere,  "including  provinces  and  islands."1 
Fish  realized  that  to  incorporate  Sumner's  demands  in  the  nego- 
tiation meant  no  treaty  and  that,  if  he  wanted  a  treaty,  he  would 
have  to  work  without  Sumner's  cooperation.  On  that  same  day 
he  began  conferring  with  senators  of  both  parties,  outlining  his 
plan  of  a  treaty,  and  obtaining  support  for  his  proposition. 

After  feeling  the  pulse  of  the  Senate  for  a  week,  Fish  invited 
John  Rose  and  J.  C.  Bancroft  Davis  to  his  house  for  dinner. 
Davis  kept  a  memorandum  of  the  conversation.  Fish  approved 
of  a  previous  suggestion  made  by  Rose  that  a  joint  commission 
should  meet  in  Washington  to  arrange  a  treaty  but  not  to  adjudi- 
cate the  amounts  or  the  validity  of  claims.  The  adjudication 
should  be  performed  by  arbitral  tribunals.  He  had  decided,  after 
consultation,  that  it  would  be  unwise  to  specify  the  "Alabama" 
claims  as  differentiated  from  those  against  the  other  cruisers, 
because  such  action  might  arouse  opposition  in  the  Senate. 
Fish  would  not,  therefore,  insist  upon  the  admission  of  liability 
by  Great  Britain  but  upon  a  general  statement  that  concessions 
should  be  made.  Rose  suggested  that  such  a  statement  could  be 
inserted  in  the  protocol;  to  which  Fish  assented.  Fish  handed  to 
Rose  the  memorandum  of  Sumner,  which  Rose  read  and  re- 
turned. Fish  said  that  if  the  British  commissioners  should  come 
on  the  basis  indicated  that  the  United  States  government  would 
spare  no  effort  to  secure  a  favorable  result,  "even  if  it  involved  a 
conflict  with  the  Chairman  of  the  Committee  on  Foreign  Rela- 
tions in  the  Senate. "  Rose  replied  that  he  would  communicate 
by  cable  with  his  government  the  result  of  the  interview.2 

Rose  cabled.  Earl  Granville  assented,  even  to  the  extent  of 
expressing  regret  for  the  escape  of  the  "Alabama"  and  its  depre- 
dations; but  he  insisted  that  the  points  of  law  involved  should  be 
submitted  to  arbitration.  Having  prepared  the  way  for  the 
formal  negotiations,  Rose  willingly  stepped  to  one  side.  On 
January  26,  1871,  Sir  Edward  Thornton  handed  to  Secretary 
Fish  a  note  proposing  the  appointment  of  a  joint  high  commis- 
sion to  treat  on  the  fisheries  and  on  all  questions  affecting  the 

1  Moore,  International  Arbitrations,   I.:  525. 
'Ibid.,  I.:  529. 


296  LEADING  AMERICAN  TREATIES 

relations  of  the  United  States  with  British  North  America.  Fish 
accepted  on  January  30,  with  the  provision  that  the  claims 
arising  out  of  the  acts  committed  by  the  "Alabama"  and  the 
other  Confederate  cruisers  should  be  included.  Thornton  ap- 
proved the  addition  of  these  claims,  February  i,  and  asked  that 
all  claims,  British  and  American,  arising  out  of  the  acts  com- 
mitted in  the  Civil  War  should  be  included.  Fish  agreed,  Febru- 
ary 3,  1871. l  Officially,  these  four  short  notes,  written  within  a 
week's  time,  brought  to  a  successful  conclusion  the  efforts  of 
twenty  months  of  brilliant  secret  diplomacy. 

President  Grant  appointed  the  Secretary  of  State  to  head  the 
American  commissioners;  the  others  were  Samuel  Nelson  of  the 
Supreme  Court,  R.  C.  Schenck,  minister  to  Great  Britain,  E.  R. 
Hoar  of  Massachusetts,  and  George  H.  Williams  of  Oregon.  For 
Great  Britain  appeared  Earl  de  Grey  and  Ripon,  a  member  of 
Gladstone's  cabinet,  Sir  Stafford  Northcote,  member  of  Parlia- 
ment, Sir  Edward  Thornton,  minister  to  the  United  States, 
Montague  Bernard,  professor  of  international  law  at  Oxford,  and 
Sir  John  A.  Macdonald,  premier  of  Canada.  They  met  in 
Washington,  February  27,  1871,  and  exchanged  copies  of  their 
full  powers,  which  were  found  satisfactory.2  The  British  com- 
missioners gracefully  proposed  that  Secretary  Fish  should  act  as 
chairman;  but  Fish  felt  that  this  would  entail  unnecessary  for- 
mality and  expressed  the  desire  that  no  president  be  named. 
The  commission  held  thirty-seven  long  sittings,  February  27  to 
May  6,  1871. 

As  concluded,  the  treaty  consisted  of  a  preamble  and  forty- 
three  articles.  The  first  subject  taken  up  consisted  of  the  claims 
on  account  of  the  acts  of  the  "Alabama"  and  the  other  cruisers; 
and  articles  one  to  eleven  of  the  treaty  were  devoted  to  it. 
These  claims  were  to  be  referred  to  a  tribunal  to  consist  of  five 
arbitrators,  one  to  be  designated  by  each  of  the  following,  the 
President  of  the  United  States,  the  Queen  of  Great  Britain,  the 
King  of  Italy,  the  President  of  Switzerland,  and  the  Emperor  of 

•Moore,  International  Arbitrations,  I.:  532,  and  Foreign  Relations,  1871: 
496. 

1  Foreign  Relations,   1871:  495  for  protocol. 


THE  TREATY  OF  WASHINGTON,   1871  297 

Brazil.  These  arbitrators  should  meet  at  Geneva  and  a  majority 
might  render  an  award.  Cases  and  counter  cases  for  the  parties 
were  provided  for,  as  well  as  written  and  oral  arguments.  The 
British  commissioners  expressed  on  the  part  of  their  government, 
in  a  friendly  spirit  a  regret  "for  the  escape,  under  whatever 
circumstances,  of  the  'Alabama'  and  other  vessels  from  British 
ports,  and  for  the  depredations  committed  by  those  vessels." 

The  American  commissioners  were  very  anxious  to  define  the 
term,  neutral  duty,  for  the  guidance  of  the  future  tribunal.  The 
debate  on  this  subject  occupied  the  time  for  six  sessions.  The 
British  had  been  instructed  to  revise  the  rules  of  maritime 
neutrality;  but,  they  contended,  this  was  for  future  guidance 
alone.  The  Americans  insisted  that  these  rules  should  be  made 
to  apply  to  the  "Alabama"  and  the  other  escaped  cruisers.  And 
they  won  their  point;  although  the  British  inserted  the  state- 
ment that  the  three  rules  of  due  diligence  were  not  international 
law  at  the  time  the  cruisers  escaped,  but  out  of  a  desire  to 
strengthen  friendly  relations  Great  Britain  would  consent  to  the 
application  of  the  rules  in  the  coming  arbitration.  These  rules 
were: 

"A  neutral  Government  is  bound — First,  to  use  due  diligence 
to  prevent  the  fitting  out,  arming,  or  equipping,  within  its  juris- 
diction, of  any  vessel  which  it  has  reasonable  ground  to  believe 
is  intended  to  cruise  or  to  carry  on  war  against  a  Power  with 
which  it  is  at  peace;  and  also  to  use  like  diligence  to  prevent  the 
departure  from  its  jurisdiction  of  any  vessel  intended  to  cruise 
or  carry  on  war  as  above,  such  vessel  having  been  specially 
adapted,  in  whole  or  in  part,  within  such  jurisdiction,  to  warlike 
use." 

Fish  had  used  in  the  first  draft  "to  use  active  diligence  to 
prevent  the  construction,  fitting  out, "  etc.  The  British  objected 
and  tried  to  insert  the  phrase,  "  reasonable  care. "  Finally,  they 
adopted  Earl  de  Grey's  suggestion  of  "due  diligence."  l  The 

1  Commenting  on  this  phrase  in  1909,  A.  Pearce  Higgins  stated  that  it 
has  become  celebrated  by  its  obscurity.  The  Second  Hague  Conference, 
made  the  following  modification  of  the  rule,  "A  neutral  Government  is 
bound  to  employ  the  means  at  its  disposal  to  prevent  the  fitting  out  or 
arming  of  any  vessel,"  etc.  (Convention  XIII,  article  8).  And  "A  neutral 


298  LEADING  AMERICAN  TREATIES 

British  objected  to  the  term  "construction."  Justice  Nelson 
explained  that  the  American  courts  had  held  that "  construction  " 
was  covered  by  the  term  "fitting  out."  The  British  thought 
the  word  too  broad,  and  so  it  was  omitted. 

A  neutral  government  is  bound,  "Secondly,  not  to  permit  or 
suffer  either  belligerent  to  make  use  of  its  ports  or  waters  as  the 
base  of  naval  operations  against  the  other,  or  for  the  purpose  of 
renewal  or  augmentation  of  military  supplies  or  arms,  or  the 
recruitment  of  men. " 

"Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters, 
and,  as  to  all  persons  within  its  jurisdiction,  to  prevent  any 
violation  of  the  foregoing  obligations  and  duties. " 

The  foregoing  rules  and  the  principles  of  international  law  not 
inconsistent  therewith  were  to  be  applied  to  each  vessel  sepa- 
rately. The  tribunal  was  given  power  to  award  a  gross  sum; 
if  it  was  found  that  Great  Britain  had  been  negligent.  The  two 
parties  agreed  to  abide  by  the  award  as  a  final  settlement. 

Before  taking  up  the  remainder  of  the  treaty,  it  will  be  well 
to  see  how  the  "Alabama"  claims  were  settled.  Great  Britain 
appointed  as  her  arbitrator  Sir  Alexander  Cockburn,  Lord 
Chief  Justice  of  England;  the  United  States,  Charles  Francis 
Adams;  the  King  of  Italy,  Count  Frederick  Sclopis;  the  President 
of  Switzerland,  M.  Jacques  Staempfli;  and  the  Emperor  of 
Brazil,  Viscount  d'ltajuba.  The  agent  for  the  United  States 
was  J.  C.  Bancroft  Davis,  and  the  agent  for  Great  Britain, 
Lord  Tenterden.  As  counsel  for  the  United  States  appeared 
William  M.  Evarts,  Caleb  Gushing,  and  Morrison  R.  Waite. 
Sir  Roundell  Palmer  appeared  alone  as  British  counsel,  but 
Montague  Bernard  and  Mr.  Cohen  sat  at  the  table  with  him. 
The  tribunal  met  on  December  15,  1871,  at  the  Hotel  de  Ville 
in  Geneva.  On  the  motion  of  Adams,  seconded  by  Cockburn, 
Count  Sclopis  of  Italy  was  chosen  president. 

The  cases  for  the  United  States  and  Great  Britain  were  then 
delivered  by  their  respective  agents.  The  tribunal  directed  that 
the  counter  cases  and  additional  documents  be  delivered  to  the 

Power  is  bound  to  exercise  such  vigilance  as  the  means  at  its  disposal  permit 
to  prevent  any  violation.  .  .  .  (Convention  XIII,  article  25). 


THE  TREATY  OF  WASHINGTON,   1871  299 

secretary  on  or  before  April  15,  1872.    On  the  following  day,  the 
tribunal  adjourned  to  meet  again  on  June  15. 

The  authorship  of  the  American  case  is  justly  attributed  to 
J.  C.  Bancroft  Davis,  who  had  the  assistance  of  the  members  of 
the  American  counsel  and  of  President  Woolsey  of  Yale.  The 
case  reviewed  in  an  able  manner  the  beginnings  of  the  Civil  War, 
the  relations  of  the  British  to  the  Southerners,  the  proclamation 
of  neutrality,  the  duties  of  Great  Britain  as  a  neutral  in  the  light 
of  the  three  rules  of  due  diligence  and  of  the  principles  of  inter- 
national law.  The  case  presented  the  facts  in  the  building  and 
equipping  of  the  cruisers,  of  the  "Alexandra"  and  the  decisions 
by  the  courts,  of  the  attitude  of  Lord  Palmerston,  Earl  Russell, 
and  of  the  local  officers  in  Nassau,  Trinidad,  Gibraltar,  Cape- 
town, Singapore,  and  Melbourne.  The  favoritism  granted  Con- 
federate vessels  and  the  discrimination  against  Union  vessels  were 
portrayed.  The  case  pointed  out  wherein  Great  Britain  had 
failed  to  perform  her  duties  as  a  neutral.  The  case  closed  with 
the  plea  that  the  tribunal  should  award  a  sum  in  gross  to  the 
United  States  to  cover: 

1.  The  claims  for  direct  losses  growing  out  of  the  destruction 
of  vessels  and  their  cargoes  by  the  insurgent  cruisers. 

2.  The  national  expenditures  in  pursuit  of  those  cruisers. 

3.  The  loss  of  the  transfer  of  the  American  commercial  marine 
to  the  British  flag. 

4.  The  enhanced  payments  of  insurance. 

5.  The  prolongation  of  the  war  and  the  addition  of  a  large 
sum  to  the  cost  of  the  war  and  the  suppression  of  the  rebellion.1 

Interest  was  asked  for  at  the  rate  of  7  per  cent.,  the  legal  rate 
in  New  York,  from  July  i,  1863,  as  the  most  equitable  day. 

The  British  case  conceived  of  neutrality  as  synonymous  with 
"impartiality  toward  the  belligerent  powers."  It  compared 
the  British  proclamation  of  neutrality  and  orders  to  enforce  it 
with  those  of  other  powers.  The  Confederates  had  complained 
that  United  States  vessels  had  been  favored  in  British  ports.  And 
the  United  States  vessels  had  obtained  coal  more  frequently  in 

1  Geneva  Arbitration,  I.:  185. 
2 Ibid.,  I.:  2ii. 


300  LEADING  AMERICAN  TREATIES 

the  West  India  ports  than  had  the  Confederate  vessels.1  But  the 
law  had  been  laid  down  alike  for  both  belligerents.  Great 
Britain  had  used  "unremitting  care  and  vigilance."  Even  the 
"Alabama"  had  been  ordered  seized;  and  it  was  not  for  lack  of 
due  diligence  that  the  vessel  got  away.  "A  vessel  becomes  a 
public  ship  of  war  by  being  armed  and  commissioned"  was  laid 
down  as  a  principle  of  international  law.2  The  "Alabama"  had 
been  armed  and  commissioned  beyond  British  jurisdiction.  This 
being  so,  when  that  ship  appeared  hi  British  ports,  it  became  the 
duty  of  Great  Britain,  as  a  neutral,  to  extend  to  her  the  privi- 
leges of  a  belligerent  vessel. 

The  British  foreign  enlistment  act  of  1819  had  been  modelled 
upon  the  American  neutrality  law  of  i8i8.3  The  government 
had  applied  that  law  in  the  case  of  the  "Alexandra. "  And  when 
it  had  lost  in  the  courts  for  want  of  sufficient  evidence  and  at  a 
cost  of  £3700,  the  vessel  had  been  seized  again  at  Nassau,  had 
undergone  a  trial,  and  been  released  at  a  further  expense  of 
£300.  The  "Florida"  had  been  seized  at  Nassau,  tried,  and 
released  for  want  of  proof.  The  Laird  iron-clads  had  been  seized 
and  the  government  had  taken  the  extraordinary  precaution  of 
purchasing  them  for  £220,000  in  order  to  prevent  them  from 
passing  into  belligerent  hands.  Two  vessels  had  been  seized  in 
Glasgow,  held  on  mere  suspicion  until  the  end  of  the  war,  and 
then  returned  over  to  then*  owners.  The  officers  of  the  govern- 
ment had  given  every  attention  to  the  complaints  made  by  Con- 
sul Dudley  and  Minister  Adams;  but  neither  one  had  furnished 
evidence  sufficient  for  the  detention  of  the  vessels. 

The  "Shenandoah"  had  been  the  "Sea  King,"  a  merchant 
vessel,  British  owned,  and  engaged  in  the  New  Zealand  and 
China  trade.  On  her  last  outward  voyage  from  London  with  a 
cargo  of  coal,  she  had  been  transferred,  November,  1864,  at  the 
Madeira  Islands  to  the  Confederate  States.  Her  guns  and  equip- 
ment arrived  from  England  in  the  steamer,  "Laurel."  After 
capturing  and  destroying  a  large  number  of  American  merchant- 

1  Geneva  Arbitration,  I.:  235. 
'Ibid.,  I.:  237. 
'Ibid.,   I.:   239. 


THE  TREATY  OF  WASHINGTON,  1871  301 

men  she  put  into  the  port  of  Melbourne  for  repairs.  This 
accomplished,  she  put  to  sea,  February  18,  1865.  The  British 
case  admitted  that  several  men  had  been  clandestinely  enlisted 
in  the  port  and  that  her  crew  had  thus  been  augmented;  but  the 
case  relied  on  the  fact  that  the  commander  had,  before  leaving, 
given  his  word  in  writing  that  no  one  had  been  enlisted  since  his 
arrival  and  that  he  had  in  no  way  violated  the  neutrality  of  the 
port.1  The  "Shenandoah"  continued  her  depredations  more 
than  six  months  after  the  Civil  War  had  closed.  When  she  fi- 
nally arrived  in  Liverpool,  the  British  government  seized  her  at 
the  request  of  Adams  and  handed  her  over  to  the  United  States. 
The  vigilance  of  the  British  government  had  been,  in  this  case, 
defeated  through  artifice  and  concealment;  but  every  action  of 
the  government  proved  that  due  diligence  had  been  observed. 
Shortly  after  the  American  case  became  known  in  London, 
expressions  of  apprehension  on  the  indirect  claims  appeared  in 
the  British  journals.  The  Times  for  January  2,  1872,  urged  that 
Britain  should  stand  upon  her  rights,  should  not  wait  for  the 
decision  by  the  tribunal,  but  demur  to  claims  for  indirect  dam- 
ages. The  Morning  Advertiser  for  January  4,  1872,  asked  if 
these  demands  had  been  referred  to  arbitration.  If  they  had  not, 
the  demands  "must  either  be  at  once  withdrawn,  or  we  must 
withdraw  from  the  treaty. "  If  these  demands  had  been  referred, 
the  jurisdiction  of  the  court  ought  to  be  repudiated.  In  Parli- 
ament a  cabinet  crisis  developed.  It  became  difficult  to  sell 
United  States  bonds  and  American  stocks.  Disraeli  in  the  op- 
position pointed  out  that  the  American  case  demanded  of  the 
country  a  tribute  greater  than  could  be  exacted  by  conquest. 
Gladstone  replied  that  there  could  be  only  one  true  and  unam- 
biguous meaning.  Statements  by  the  British  commissioners  re- 
vealed that  there  was  no  unanimity  on  whether  the  claims  were 
or  were  not  excluded.  The  American  commissioners  were  unani- 
mous that  the  indirect  claims  had  not  been  excluded,  and,  in- 
asmuch as  the  treaty  stipulated  that  "all  complaints  and  claims 
on  the  part  of  the  United  States"  on  account  of  the  "Alabama" 
and  the  other  vessels  should  be  adjusted,  these  indirect  claims 
1  Geneva  Arbitration,  I.:  405. 


302  LEADING  AMERICAN  TREATIES 

were  therefore  constructively  included.  Considerable  discussion 
took  place  between  the  Foreign  Office  and  the  State  Depart- 
ment. But  the  saviour  of  the  situation  was  the  American 
arbitrator,  Charles  Francis  Adams.  Before  he  sailed  for  Geneva 
Adams  expressed  the  opinion  to  Fish  that  as  a  matter  of  public 
law  a  state  was  not  liable  in  damages  for  injuries  like  those 
listed  under  the  indirect  claims.  Fish  suggested  that  he  ex- 
change opinions  with  Cockburn  or  some  member  of  the  British 
cabinet;  thus  giving  the  government  assurance  that  the  Ameri- 
can and  British  arbitrators  agreed  on  that  point.1 

Arriving  in  England,  Adams  learned  that  Sir  Alexander  Cock- 
bum  regarded  the  arbitration  as  dead.  He  saw  several  members 
of  Gladstone's  cabinet  and  proceeded  to  Geneva.  There  he 
found  that  the  British  agent  had  been  instructed  to  obtain  an 
adjournment  of  the  tribunal  for  six  months  or  to  come  home. 
Adams  laid  his  plan  before  the  American  agent  first;  who  saw  the 
members  of  counsel  on  both  sides  while  Adams  consulted  the 
other  arbitrators.  The  result  was  that  at  the  meeting  of  the 
tribunal  on  June  17,  1872,  an  agreement  to  exclude  the  indirect 
claims  was  in  sight.  On  June  19,  Count  Sclopis  declared  that 
the  members  had  arrived,  individually  and  collectively,  at  the 
decision  that  upon  principles  of  international  law  the  indirect 
claims  did  not  constitute  a  "good  foundation  for  an  award  of 
compensation  or  computation  of  damages  between  nations,  and 
should  upon  such  principles  be  wholly  excluded  from  the  con- 
sideration of  the  tribunal  in  making  its  award,  even  if  there  were 
no  disagreement  between  the  two  governments  as  to  the  com- 
petency of  the  tribunal  to  decide  thereon."  The  agents 
received,  thereupon,  instructions  from  their  governments  to 
proceed  with  the  case. 

The  indirect  claims  being  eliminated,  only  two  points  in  the 
American  case  remained,  i.  The  claims  for  direct  losses  growing 
out  of  the  destruction  of  vessels  and  their  cargoes  by  the  insur- 
gent cruisers.  2.  The  national  expenditures  in  the  pursuit  of 
those  cruisers. 

1  Moore,  International  Arbitrations,  I.:  643. 
'Geneva  Arbitration,  II.:  578. 


THE  TREATY  OF  WASHINGTON,   1871  303 

The  counter  cases  with  documents  had  been  delivered  by  the 
agents  to  the  secretary  of  the  tribunal  on  April  15,  1872.  On 
June  15  the  printed  arguments  had  been  delivered.  The  counsel 
for  neither  party  could  thereafter  present  as  a  matter  of  right  any 
further  arguments  or  elucidations  either  orally  or  in  writing. 
Article  V  of  the  treaty  specified  that  the  arbitrators  alone  could 
call  for  further  arguments  on  any  points  indicated.  The  tribunal 
did  call  for  such  arguments  on  seven  different  points,  i,  the 
meaning  of  due  diligence;  2,  the  effect  of  a  commission  on  a 
belligerent  vessel  entering  a  neutral  port;  3,  the  amount  of  coal 
that  a  neutral  may  furnish  a  belligerent  vessel;  4,  the  recruit- 
ment of  men  for  the  Shenandoah  hi  Melbourne;  5,  the  effect  of 
the  entry  of  the  Florida  into  the  port  of  Mobile;  6,  the  question 
of  interest  and  the  rate;  and  7,  the  amount  of  damages.1 

As  soon  as  Staempfli  had  received  the  cases  and  the  counter 
cases  of  the  parties,  he  secluded  himself  in  an  Alpine  retreat  to 
master  their  contents.  And  when  the  tribunal  met  on  June  15, 
he  appeared  with  abstracts  of  evidence  and  elaborately  written 
opinions  on  the  main  questions  involved.  This  gave  him  the 
advantage  over  Adams  even,  familiar  as  the  latter  was  with  the 
history  of  the  claims;  not  to  mention  the  advantage  over  Cock- 
burn,  who  had  been  convinced  the  tribunal  would  break  up  hi 
failure  and  who  admitted  that  he  had  not  yet  begun  to  examine 
the  cause.  At  the  session  of  July  15  Staempfli  submitted  a 
program,  proposing  that  the  tribunal  should  consider  the  facts 
and  the  principles  of  law  in  the  case  of  each  cruiser  in  regular 
order.  He  mentioned  that  this  order  was  the  one  he  had  pursued 
in  the  examination  of  the  evidence  and  arguments  and  that  he 
had  reached  conclusions  on  all  points,  though  these  were  subject 
to  modification.  Cockburn  protested  and  submitted  that  the 
principles  of  law  should  be  agreed  upon  before  considering  the 
facts  respecting  the  vessels.2  Baron  Itajuba  observed  that  such 
a  plan  would  consume  much  time  in  theoretical  discussion. 
"We  are  here  as  judges, "  retorted  Cockburn,  "and  as  such  must 
deliberate  slowly."  Count  Sclopis  replied,  "It  is  not  necessary 

1  Geneva  Arbitration,  III.:  385-638. 

2  Ibid.,  IV.:   27. 


304  LEADING  AMERICAN  TREATIES 

for  Lord  Cockburn  to  state  that  we  are  here  as  judges.  We  all 
have  felt  from  the  commencement  and  still  feel  a  deep  apprecia- 
tion of  our  duties  as  such.  I  have  presided  for  many  years  in  the 
highest  tribunal  in  my  country.  There  the  facts  are  universally 
discussed  first,  then  the  principles  which  govern  them. "  : 

The  various  questions  involved  and  the  decisions  reached  were 
well  summarized  in  the  award.  This  was  read  at  the  thirty-third 
conference  on  Saturday,  September  14,  1872.  For  the  first  time 
the  doors  of  the  Salle  des  Conferences  of  the  Hotel  de  Ville  of 
Geneva  were  thrown  open  to  the  public.  The  secretary  read  the 
official  copy  of  the  award  in  English.  Four  arbitrators  concurred 
in  the  award;  Cockburn  did  not  and  handed  in  a  bulky  and 
contentious  dissenting  opinion,2  which  was  not  read.  The 
archives  were  deposited  with  the  council  of  state  at  Geneva. 
Thereupon,  the  president  declared  the  labors  of  the  arbitrators 
to  be  finished  and  the  tribunal  to  be  dissolved. 

The  award  stated  that  the  arbitrators  had  been  governed  by 
the  three  rules  of  due  diligence  and  by  the  principles  of  interna- 
tional law  not  inconsistent  therewith.  The  due  diligence  men- 
tioned in  the  first  and  third  of  these  rules  ought  to  be  exercised 
by  neutral  governments  in  exact  proportion  to  the  risks  to  which 
either  of  the  belligerents  might  be  exposed  from  a  failure  to  fulfil 
the  obligations  of  neutrality.  The  facts  constituting  the  subject 
matter  in  this  controversy  arose  out  of  such  circumstances  and 
were  of  such  a  nature  as  to  call  for  all  possible  solicitude  by  the 
British  government  in  the  observance  of  the  rights  and  duties 
involved  in  its  proclamation  of  neutrality.  The  tribunal  held 
that  the  commissioning  of  a  vessel  by  a  belligerent  did  not  ab- 
solve the  neutral  in  whose  jurisdiction  it  had  been  constructed, 
equipped,  and  armed  from  responsibility  for  the  acts  of  the  vessel 
after  it  had  been  commissioned;  nor  could  the  consummation  of  a 
fraud  by  a  belligerent  become  the  means  of  establishing  the 
innocence  of  the  neutral. 

The  privilege  of  exterritoriality  accorded  the  vessels  of  war  of  a 

1  Moore,  International  Arbitrations,  I.:  648,  and   Geneva  Arbitration,  IV.: 
26. 
*  Geneva  Arbitration,  IV. :  230-544. 


THE  TREATY  OF  WASHINGTON,   1871  305 

belligerent  in  neutral  ports  by  the  law  of  nations  was  a  privilege 
and  not  a  right  and  proceeded  solely  from  courtesy  and  mutual 
deference  and  could  not  be  used  by  the  neutral  to  protect  acts 
done  in  violation  of  neutrality.  The  fact  that  the  United  States 
was  in  some  instances  unable  to  give  Great  Britain  due  notice 
that  her  neutrality  was  being  violated  served  in  no  way  to 
shield  the  latter. 

In  the  case  of  the  "Alabama"  Great  Britain  failed  to  use  due 
diligence  in  stopping  her  construction  and  hi  preventing  the 
"Agrippina"  from  carrying  the  equipment  and  armament  from 
England  to  Terceira.  The  orders  for  her  seizure  came  so  late 
that  they  could  not  be  executed.  After  the  vessel  had  escaped 
Great  Britain  failed  to  take  proper  measures  for  her  pursuit  and 
arrest.  Moreover,  the  "Alabama"  was  permitted  to  coal  freely 
in  British  colonial  ports  on  several  occasions  with  no  effort  being 
made  to  seize  her.  All  of  the  five  arbitrators  agreed  in  this  case 
that  Great  Britain  had  failed  by  omission  to  fulfil  the  duties 
prescribed  in  the  first  and  third  rules  of  due  diligence.  Cockburn 
did  not  agree  with  the  reasons  of  the  other  four  judges  but  he 
reached  the  same  conclusion. 

In  permitting  the  construction  of  the  "Florida,"  her  escape 
from  Liverpool,  her  release  from  Nassau,  her  enlistment  of  men, 
taking  on  supplies  and  armament  with  the  aid  of  the  British 
vessel  "Prince  Alfred"  at  Green  Cay,  Great  Britain  had  been 
guilty  of  negligence.  The  "Florida"  had  thereafter  been  per- 
mitted to  coal  freely  on  various  occasions  at  British  ports.  And 
the  fact  that  the  "Florida"  had  entered  the  Confederate  port  of 
Mobile  did  not  "extinguish  the  responsibility  previously  to  that 
time  incurred  by  Great  Britain."  By  a  majority  of  four  to 
one  the  tribunal  decided  that  in  the  case  of  the  "Florida," 
Great  Britain  had  violated  all  three  of  the  rules  of  due 
diligence. 

In  the  case  of  the  "Shenandoah"  which  had  been  engaged  in 
the  merchant  trade  and  left  London  as  a  merchant  vessel  under 
her  original  name  of  "Sea  King,"  under  British  registry  and 
ownership,  the  tribunal  agreed  unanimously  that  Great  Britain 
had  observed  due  diligence;  that  Great  Britain  could  in  no  way 


306  LEADING  AMERICAN  TREATIES 

be  charged  with  responsibility  for  her  transformation  into  a 
Confederate  war  vessel  off  Madeira,  nor  for  her  career  of  destruc- 
tion thereafter  until  she  entered  the  harbor  of  Melbourne.  But 
by  a  majority  of  three  to  two  the  tribunal  held  that,  by  permit- 
ting the  augmentation  of  force  through  the  enlistment  of  men 
at  Melbourne,  Great  Britain  had  been  negligent  and  would 
therefore  be  obliged  to  assume  responsibility  for  the  de- 
struction wrought  by  the  "Shenandoah"  after  she  left 
Melbourne. 

So  far  as  the  tenders  were  concerned,  it  was  decided  that  they 
should  follow  the  lot  of  their  principals.  The  United  States 
claimed  that  Great  Britain  was  responsible  for  the  destruction 
committed  by  eleven  other  vessels  for  want  of  due  diligence,  but 
the  tribunal  absolved  Great  Britain  entirely  in  six  and  excluded 
five  from  consideration  for  lack  of  evidence. 

The  United  States  claimed  indemnity  for  the  cost  of  pursuing 
the  cruisers.  The  tribunal  held  that  these  costs  could  not  be 
distinguished  from  the  general  expenses  of  the  war  and  that  no 
allowance  could  be  made.  Another  claim  was  based  upon  the 
prospective  earnings  of  the  merchantmen  destroyed  by  the 
cruisers;  but  the  tribunal  was  unanimously  of  the  opinion  that 
this  constituted  no  ground  for  an  award  inasmuch  as  these 
earnings  depended  upon  future  and  uncertain  contingencies. 
On  the  claim  of  freight  for  the  actual  cargo,  net  freight  only  was 
allowed.  Interest  at  a  reasonable  rate  was  recognized  in  princi- 
ple, but  the  amount  was  not  specified.  The  tribunal  expressed 
itself  in  favor  of  an  award  in  gross. 

By  a  majority  of  four  to  one,  the  tribunal  awarded  $15,500,000 
in  gold  as  the  indemnity  to  be  paid  by  Great  Britain  to  the 
United  States  in  satisfaction  of  all  claims  referred  to  the  tri- 
bunal.1 

Public  opinion  in  the  United  States  received  the  announce- 
ment of  the  award  with  satisfaction.  True,  the  indirect  claims 
still  furnished  substance  for  party  cavil.  In  Great  Britain  op- 
inion appeared  to  be  more  divided.  The  disposition  of  the 
indirect  claims  was  hailed  as  a  victory  and  the  sum  awarded  was 
1  Malloy,  Treaties,  I:  717. 


looked  upon  as  a  price  which  Britain  deserved  to  pay.1  Con- 
siderable doubt  arose  in  the  minds  of  several  Englishmen  as  to 
the  construction  of  the  three  rules  of  due  diligence,  among  these 
were  Earl  Granville,  the  head  of  the  Foreign  Office,  Mr.  Glad- 
stone, Vernon  Harcourt,  and  Roundell  Palmer.  The  Institute  of 
International  Law  noted  that  the  rules  were  declaratory  of  the 
law  of  nations,  at  its  session  in  Geneva,  1874,  but  in  order  to 
eliminate  disputes  on  the  interpretation  that  body  adopted  a 
redraft  of  the  rules.2  Bismarck  expressed  himself  as  averse  to 
approving  the  three  rules,  as  they  stood  in  the  treaty,  for  Ger- 
many and  so  did  Count  Beust  for  Austria.  The  result  was  that 
neither  Great  Britain  nor  the  United  States  urged  other  powers 
to  accede  to  the  three  rules  of  due  diligence  as  a  definition  of  the 
obligations  of  a  neutral.  Indeed,  it  may  be  said  that  the  sub- 
stance and  the  application  of  those  rules  did  not  become  a  part 
of  international  law  until  the  Second  Hague  Conference,  1907, 
had  completed  its  work.3 

For  the  adjudication  and  disposition  of  the  money  received  by 
the  Geneva  award  the  United  States  had  to  set  up  two  courts. 
The  first  one  found  valid  claims  for  only  $9,316,120.25;  so  that  a 
second  court  was  created  to  dispose  of  the  remainder.  The  first 
court  consisted  of  five  judges.  It  became  their  duty  to  examine 
all  claims  "directly  resulting  from  damage  caused"  by  the  "Ala- 
bama," the  "Florida,"  and  the  "Shenandoah"  after  she  left 
Melbourne  and  to  decide  upon  the  validity  of  such  claiins  in 
accordance  with  the  "principles  of  law  and  the  merits  of  the 
several  cases. "  No  claim  could  be  allowed  for  damage  covered 
by  insurance,  for  unearned  freights  or  prospective  profits,  nor  to 
an  insurance  company  unless  it  could  show  that  its  losses  in 
respect  to  war  risks  exceeded  the  sum  of  its  premiums.  Claims 
made  by  persons  not  entitled  to  protection  from  the  government 
at  the  time  of  the  loss  should  not  be  allowed,  nor  the  claims  of 
persons  who  had  failed  to  bear  "true  allegiance"  to  the  United 
States  during  "  the  late  rebellion. "  Interest  at  4  per  cent,  could 

1  Moore,  International  Arbitrations,  I.:  664. 

"Ibid.,  I.:  674. 

3Higgins,  Hague  Peace  Conferences;  480. 


308  LEADING  AMERICAN  TREATIES 

be  allowed.  In  its  general  provisions  the  statute  kept  within  the 
lines  of  the  award.1  By  a  statute  of  March  3, 1873,  Congress  had 
merged  the  amount  of  the  award  with  other  funds  to  be  used  in 
redeeming  the  public  debt  of  the  United  States.  A  special  bond 
for  $15,500,000  was  accordingly  written  out  with  a  pen.2  The 
Secretary  of  the  Treasury  was  therefore  directed  to  pay  the 
judgments  of  the  court  "out  of  any  such  money  in  the  Treasury 
not  otherwise  appropriated. " 

Only  one  claim  for  national  losses  was  presented,  that  by  the 
Secretary  of  the  Navy  for  pursuit  of  the  cruisers;  and  it  was  dis- 
allowed. Claims  for  injuries  to  the  person  were  rejected  on  the 
ground  that  the  United  States  had  not  mentioned  such  claims  in 
its  diplomatic  correspondence  with  Great  Britain  and  that  Con- 
gress had  intended  to  limit  the  claims  to  the  loss  of  property 
only.  On  the  subject  of  "true  allegiance"  the  court  held  it 
insufficient  that  claimant  had  not  been  guilty  of  treason  as 
denned  by  the  constitution  or  that  he  had  received  a  pardon. 
Pretty  much  all  persons  domiciled  in  the  United  States  were 
considered  entitled  to  the  "protection  of  the  United  States." 
This  included  foreigners  employed  in  the  merchant  marine  and 
in  the  whale  fisheries;  but  the  court  held  that  the  claims  of  Brit- 
ish subjects  so  employed  could  not  have  been  intended  by  the 
award  to  be  included.  On  the  claims  "directly  resulting"  from 
the  acts  of  the  cruisers  the  court  ruled  out  those  based  on  a  loss 
of  catch  due  to  being  chased,  those  based  on  an  average  adjust- 
ment on  a  ransom  bond,  and  those  based  on  service  rendered  as 
cartel  ships  in  taking  crews  of  destroyed  vessels  to  a  place  of 
safety.3  In  all  the  court  disposed  of  2,068  claims  amounting 
to  about  $14,500,000.  Of  this  amount  the  court  allowed 
$9,316,125.25.  The  interest  and  profits  on  the  sale  of  the  bonds 
made  the  remainder  of  the  fund  amount  to  $10,089,004.96. 
On  June  23,  1874,  the  remaining  bonds  in  which  the  fund 
was  invested  were  cancelled.  Consequently,  the  fund  did  not 
grow  further. 

1 18  Statutes  at  Large,  245. 
'Hackett,  Geneva  Award  Acts:  178. 
»See  Davis'  Report. 


THE  TREATY  OF  WASHINGTON,  1871  309 

Five  classes  of  claimants  arose  for  participation  in  the  remain- 
der: i,  those  who  had  had  property  destroyed  by  the  inculpated 
cruisers,  that  is,  the  "Alabama,"  "  Florida,"  and  "  Shenandoah;" 
2,  those  who  had  had  property  destroyed  by  the  exculpated 
cruisers,  that  is,  those  Confederate  cruisers  for  which  Britain  had 
not  been  held  responsible  at  Geneva;  3,  those  who  had  paid 
higher  insurance  premiums  because  the  Confederate  cruisers 
roamed  the  seas;  4,  those  who  had  underwritten  risks  on  pro- 
perty destroyed  by  the  inculpated  cruisers  and  these  wanted 
their  claims  considered  apart  from  the  premiums  collected  and 
on  the  same  grounds  as  the  insured;  and  5,  the  claims  of  those 
who  did  not  at  all  times  during  the  war  bear  true  allegiance  to 
the  United  States.1 

In  response  to  the  demands  of  the  claimants  various  proposals 
were  made  in  Congress.  One  was  to  return  the  remainder  of  the 
fund  to  Great  Britain.  Another  proposed  to  revive  the  act  of 
1874.  Still  another  would  leave  the  matter  with  the  Court  of 
Claims.  None  of  these  plans  met  with  favor.  Finally,  Congress 
passed  the  statute  of  June  5, 1882.  It  created  a  court  with  three 
judges  which  could  render  judgments  for  "claims  directly  result- 
ing from  damage  done  on  the  high  seas  by  Confederate  cruisers 
during  the  late  rebellion. "  The  damage  done  by  the  exculpated 
cruisers  was  therefore  included.  It  could  also  render  judgments 
for  "claims  for  the  payment  of  premiums  for  war  risks,  whether 
paid  to  corporations,  agents,  or  individuals,  after  the  sailing  of 
any  Confederate  cruiser."  Claims  should  accordingly  be  di- 
vided into  two  classes;  and  the  judgments  in  favor  of  the  first 
class  should  be  paid  first;  and  if  there  should  not  be  sufficient 
money  in  the  fund  to  satisfy  judgments  hi  favor  of  the  second 
class,  these  should  be  paid  proportionately. 

Of  the  cases  coming  under  the  first  class  the  court  disposed  of 
1,602,  with  judgments  in  favor  of  994  claimants  to  the  aggregate 
amount  of  $3,346,016.32;  all  based  on  damages  committed  by 
the  exculpated  cruisers.  The  court  disposed  of  4,149  cases 
coming  under  the  second  class  or  war  premium  claims.  Judg- 
ments were  rendered  in  favor  of  3,662  claimants  to  the  aggregate 
1  Hackett,  Geneva  Award  Acts:  87. 


310  LEADING  AMERICAN  TREATIES 

amount  of  $16,312,944.52.  The  judgments  of  the  second  class 
had  of  necessity  to  be  prorated.  The  first  court  ruled  out  the 
claims  of  British  subjects  serving  on  the  American  merchantmen 
destroyed  by  the  Confederate  cruisers  as  not  being  covered 
expressly  by  the  statute.  These  claims  were  now  included.1 

Articles  XII  to  XVII  of  the  Treaty  of  Washington  provided 
for  the  settlement  of  claims  of  American  citizens,  other  than  the 
"Alabama"  claims,  and  of  British  subjects  growing  out  of  the 
Civil  War.  Under  the  terms  three  commissioners  were  appointed, 
J.  S.  Fraser  of  Indiana  by  the  United  States,  Russell  Gurney  by  the 
Queen  of  Great  Britain,  and  Count  Louis  Corti  by  the  King  of 
Italy.  The  treaty  specified  that  they  should  sit  in  Washington. 
This  they  did  until  an  amendment  was  obtained  which  permitted 
them  to  sit  hi  Newport.  They  completed  their  labors  on  Sep- 
tember 25,  1873.  The  American  claims  amounted  to  about 
$1,000,000.  Twelve  grew  out  of  a  raid  on  St.  Albans,  Vermont, 
October,  1864,  made  by  Confederate  soldiers  who  came  as 
"peaceable  individuals"  by  way  of  Canada.  Four  claims  were 
for  damages  for  the  alleged  unlawful  detention  of  vessels  laden 
with  saltpeter  at  Calcutta  in  January,  1862.  All  of  the  American 
claims  were  dismissed.2 

On  behalf  of  British  subjects  478  claims  were  presented.  Of 
these  187  received  favorable  awards  by  the  commission,  amount- 
ing to  $1,929,819.  Several  of  the  awards  were  based  on  claims 
for  cotton  destroyed  by  the  American  military  forces;  for  pro- 
perty confiscated  on  the  assumption  that  it  belonged  to  Confed- 
erates; for  vessels  captured  at  the  mouth  of  the  Rio  Grande 
while  lying  in  neutral  waters  and  condemned  by  the  United 
States  prize  courts;  for  unlawful  warning  off  of  British  vessels 
from  ports  not  under  effective  blockade;  and  for  the  conscription 
of  British  subjects  into  the  American  army.  In  the  case  of  the 
"Springbok"  an  allowance  of  $5,065  was  made  for  the  detention 
of  the  vessel  but  nothing  for  her  cargo  that  had  been  condemned. 
Claims  based  on  the  cotton  loan  bonds  of  the  Confederacy  were 
disallowed,  as  were  those  based  on  property  destroyed  by  the 

1  Cassidy  r.  United  States,  docket  number  144. 

1  Report  of  Robert  S.  Hale,  Foreign  Relations,  1878,  III.:  21. 


THE  TREATY  OF  WASHINGTON,  1871  311 

military  forces  of  the  Confederacy,  and  likewise  those  based  on 
the  capture  of  the  "Peterhoff."  l 

Articles  XVIII  to  XXV  and  XXXII  and  XXXIII  of  the 
Treaty  of  Washington  related  to  the  North  Atlantic  fisheries. 
The  British  negotiators  wanted  the  reciprocity  treaty  of  1854 
revived,  but  the  Americans  refused.  The  agreement  reached 
provided  for  the  liberty  of  Americans  to  take  fish  of  every  kind 
except  shell  fish  in  common  with  British  subjects  on  the  coasts, 
shores,  bays,  and  harbors  of  Quebec,  Nova  Scotia,  New  Bruns- 
wick, and  Prince  Edward's  Island  in  addition  to  the  fishing 
rights  obtained  by  the  Treaty  of  1818.  The  rights  of  private 
property  were  to  be  respected;  and  the  salmon  and  shad  fisheries 
of  the  rivers  were  reserved  for  the  British.  A  reciprocal  provi- 
sion was  made  for  British  subjects  to  fish  in  common  with 
Americans  within  the  three  mile  limit  of  the  United  States  north 
of  the  thirty-ninth  parallel,  which  would  not  include  Delaware 
Bay.  Fish  and  fish  oil  were  to  be  admitted  reciprocally  free  of 
duty.  The  British  negotiators  asserted  that  the  privileges 
accorded  American  citizens  were  of  greater  value  than  those 
accorded  British  subjects.  Consequently,  a  commission  was 
created  to  evaluate  the  advantage  enjoyed  by  Americans.  That 
commission  sat  at  Halifax  in  1877  and  awarded  $5,500,000  in 
gold  to  be  paid  by  the  United  States  to  Great  Britain  for  the  ten 
year  period  that  the  treaty  was  to  be  binding.  The  United 
States  protested  but  paid  the  award.  As  a  safeguard  for  the 
future  Congress  passed  a  joint  resolution  giving  notice  that  this 
part  of  the  treaty  would  be  considered  terminated  on  July  i, 
1885.  The  final  settlement  of  the  fisheries  dispute  did  not  come 
until  the  Hague  arbitration  of  1910. 

Articles  XXVI  to  XXVIII  opened  the  St.  Lawrence  north  of 
the  northern  boundary  of  New  York  to  American  navigation. 
The  navigation  of  the  Yukon,  Porcupine,  and  Stikine  was  de- 
clared free  and  open  to  British  subjects  and  American  citizens 
alike.  Great  Britain  agreed  to  urge  the  government  of  Canada 
to  secure  to  American  citizens  the  same  privileges  on  the  Welland, 
St.  Lawrence,  and  other  canals  as  Canadians  enjoy.  The  United 
1  Moore,  International  Arbitrations,  I.:  688;  IV.:  3838,  3928. 


312  LEADING  AMERICAN  TREATIES 

States  agreed  to  urge  upon  the  State  governments  to  secure  the 
same  privileges  for  British  subjects  upon  the  various  State 
canals  as  those  enjoyed  by  Americans.  The  United  States 
agreed  that  American  citizens  and  British  subjects  should  be 
treated  alike  hi  their  use  of  the  St.  Clair  Flats  canal.1  Article 
XXVIII  provided  for  the  opening  of  Lake  Michigan  to  British 
subjects  for  a  term  of  ten  years  after  passage  by  Congress  of  the 
proper  legislation.  Congress  did  not  and  never  has  passed  this 
legislation;  consequently  this  article  remains  inoperative.  Arti- 
cles XXIX,  XXX,  and  XXXIII  provided  for  the  reciprocal 
transit  of  goods  in  bond  and  for  a  slight  modification  of  the 
coasting  trade  regulations.  These  articles  terminated  on  July  i, 
1885,  on  notice  given  by  the  United  States.2  Article  XXXI 
specified  that  New  Brunswick  could  levy  no  duty  on  lumber  or 
timber  cut  on  American  territory  "watered  by  the  river  St, 
John  and  its  tributaries,"  when  floated  down  that  river  and 
destined  for  the  United  States. 

The  remaining  articles,  except  the  one  on  exchange  of  ratifica- 
tions, pertained  to  the  settlement  of  the  San  Juan  boundary 
dispute.  This  was  submitted  to  the  Emperor  of  Germany  for 
arbitration.  The  United  States  was  fortunate  in  choosing  for 
its  representative  the  eminent  historian  and  statesman,  George 
Bancroft.  The  British  representative  was  Admiral  James  C. 
Prevost,  who,  like  Bancroft,  had  personally  participated  in  the 
history  of  the  controversy.  Emperor  William  decided  on  the 
Haro  Channel  which  gave  San  Juan  and  numerous  other  islands 
to  the  United  States.3 

In  the  number  of  issues  involved,  issues  big  with  danger,  and 
in  the  number  of  questions  of  long  standing  dispute  put  to  rest, 
the  Treaty  of  Washington  ranks  easily  as  one  of  the  most  impor- 
tant hi  American  history.  The  enunciation  of  the  principles  of 
international  law  relating  to  the  obligations  of  neutral  states 
made  the  treaty  take  rank  as  one  of  the  first  in  the  world's 
history.  The  treaty  has  in  every  war  since  1871  influenced  the 

1  Moore,  Digest,  I.:  635. 

'See  Harrison's  message  of  February  2,  1893,  Richardson,  IX.:  335. 

1  Moore,  International  Arbitrations,  I.:  229. 


THE  TREATY  OF  WASHINGTON,  1871  313 

political  affairs  of  every  continent  and  island,  indeed,  of  the  sea 
itself. 

Political  principles,  international  as  well  as  national,  have 
an  enduring  aspect  in  so  far  as  they  correctly  express  the  needs 
of  the  state.  The  outstanding  characters  who  spoke  the  words 
of  progress  during  these  negotiations  were  Sir  John  Rose  for  Great 
Britain,  Charles  Francis  Adams  and  Hamilton  Fish  for  the 
United  States.  Grant  and  Gladstone  might  be  included  as  the 
chiefs  of  their  respective  governments. 

BIBLIOGRAPHY. 

ADAMS,  CHARLES  FRANCIS. — Charles   Francis  Adams.     New   York,    1900. 
ADAMS,  CHARLES  FRANCIS. — The  Treaty  of  Washington:    Before  and  After, 

in  Lee  at  Appomatox  and  other  papers.    Boston,  1002. 
BERNARD,  MONTAGUE. — The  Neutrality  of  Great  Britain  during  the  American 

Civil  War.    London,  1870. 
BULLOCH,  JAMES  D. — The  Secret  Service  of  the  Confederate  States  in  Europe. 

2  volumes.     New  York,  1884. 

GUSHING,  CALEB. — The  Treaty  of  Washington.    New  York,  1873. 
DAVIS,  J.  C.  BANCROFT. — Mr.  Fish  and  the  Alabama  Claims.      Boston, 

1893. 
DAVIS,  J.  C.   BANCROFT. — Mr.  Sumner,  the  Alabama  Claims,   and   Their 

Settlement.    A  letter  to  the  New  York  Herald,  Jan.  4, 1878. 
Diplomatic  Correspondence,  1862  to  1869.     Washington. 
Foreign  Relations,  1870  to  1874.     Washington. 
HACKETT,  FRANK  W. — The  Geneva  Award  Acts.    Boston,  1882. 
HAYNES,  GEORGE  H. — Charles  Sumner.     Philadelphia,   1909. 
MAcDoNALD,  SIR  JOHN  A. — Memoirs,  (edited  by  Joseph  Pope).    2  volumes. 

London,   1894. 
NORTHCOTE,  SIR  STAFFORD. — Life,  Letters,  and  Diaries.     (Edited  by  Andrew 

Lang).    2  volumes.    London,  1890. 


CHAPTER  XIV 
THE  TREATY  OF  PARIS,  1898 

"Arbitration  precedes  war,  to  avoid  its  horrors;  it  does  not  come  after 
the  trial  by  battle  to  enable  either  party  to  escape  its  consequences." — 
FROM  AMERICAN  REPLY  TO  A  PROPOSAL  MADE  BY  THE  SPANISH  PEACE 
COMMISSION. 

At  the  Congress  of  Verona,  1822,  Austria,  Russia,  Prussia,  and 
France  bound  themselves  "mutually  and  in  the  most  solemn 
manner,  to  use  all  their  efforts  to  put  an  end  to  the  system  of 
representative  governments  in  whatsoever  country  it  may  exist 
in  Europe,  and  to  prevent  its  being  introduced  hi  those  countries 
where  it  is  not  yet  known. "  That  same  congress  commissioned 
France  to  reestablish  absolutism  under  Ferdinand  hi  Spain. 
This  the  Due  d'Angouleme  accomplished  when  he  entered  Ma- 
drid with  a  French  army,  May  23,  1823.  Thereupon,  Ferdinand 
argued  that  to  put  down  rebellion  hi  the  former  colonies  of 
Spain  in  America  would  be  an  object  as  holy  as  that  of  replacing 
him  on  the  throne.  Report  had  it  that  if  France  would  assist, 
Ferdinand  would  reward  her  with  the  cession  of  Mexico  or  Cuba. 

The  apprehensions  of  Canning  concerning  the  openings  for 
British  trade  in  South  and  Central  America  were  stirred.  He 
notified  France  that  the  separation  of  the  colonies  from  Spain 
had  been  decided  by  the  course  of  events  and  expressed  the  con- 
viction that  France  would  make  no  attempt  to  bring  any  of  those 
colonies  under  her  jurisdiction.1  On  August  20,  1823,  Canning 
wrote  to  the  American  minister,  Richard  Rush:  "Is  not  the 
moment  come  when  our  governments  might  understand  each 
other  as  to  the  Spanish  American  colonies?  And  if  we  can 
arrive  at  such  an  understanding,  would  it  not  be  expedient  for 
ourselves,  and  beneficial  for  all  the  world,  that  the  principles  of  it 
should  be  clearly  settled  and  plainly  avowed?"  He  conceived 
of  the  question  of  the  recognition  of  the  independence  of  the  for- 
1  Moore,  Digest,  VI.:  386. 
314 


THE  TREATY  OF  PARIS,   1898  315 

mer  Spanish  colonies  "to  be  one  of  time  and  circumstances." 
He  disavowed  any  intent  on  the  part  of  Great  Britain  to  take 
possession  of  them.  But  he  could  not  with  indifference  see  them 
transferred  to  any  other  power.  He  wanted  to  know  if  Rush 
did  not  have  power  to  negotiate  and  sign  a  convention  on  the 
subject.  Codperation  between  the  United  States  and  Great 
Britain  he  felt  would  ward  off  any  meditated  jurisdiction  of 
European  powers  over  the  new  world.1 

The  American  Secretary  of  State  was  John  Quincy  Adams. 
In  his  instructions  to  the  newly  appointed  minister  to  Madrid, 
Mr.  Nelson,  he  had  on  April  28,  1823,  expressed  himself  on  the 
war  between  France  and  Spain.  "Whatever  may  be  the  issue  of 
this  war  ...  it  may  be  taken  for  granted  that  the  dominion  of 
Spain  upon  the  American  continents,  north  and  south,  is  irrevoc- 
ably gone.  But  the  islands  of  Cuba  and  Puerto  Rico  still 
remain  nominally,  and  so  far  really,  dependent  upon  her,  that 
she  yet  possesses  the  power  of  transferring  her  dominion  over 
them.  .  .  Cuba,  almost  within  sight  of  our  shores,  from  a 
multitude  of  considerations  has  become  an  object  of  transcendent 
importance  to  the  commercial  and  political  interests  of  our 
Union.  Its  commanding  position  with  reference  to  the  Gulf  of 
Mexico  and  the  West  Indian  seas;  the  character  of  its  popula- 
tion; its  situation  midway  between  our  southern  coast  and  the 
island  of  San  Domingo;  its  safe  and  capacious  harbor  of  the 
Havana  fronting  a  long  line  of  our  shore  destitute  of  the  same 
advantage;  the  nature  of  its  productions  and  of  its  wants,  fur- 
nishing the  supplies  and  needing  the  returns  of  a  commerce 
immensely  profitable  and  mutually  beneficial, — give  it  an 
importance  in  the  sum  of  our  national  interests  with  which 
that  of  no  other  foreign  country  can  be  compared,  and  little 
inferior  to  that  which  binds  the  different  members  of  this  Union 
together. " 

Adams  feared  an  invasion  of  Cuba  by  France.  And  he  com- 
mented on  the  refusal  of  Great  Britain  to  join  the  Holy  Alliance 
as  foreboding  an  alliance  between  Great  Britain  and  Spain 
against  France.  "As  the  price  of  her  alliance,  the  two  remaining 
1  Moore,  Digest,  VI.:  389. 


3l6  LEADING  AMERICAN  TREATIES 

islands  of  Spain  in  the  West  Indies  present  objects  no  longer  of 
much  possible  value  or  benefit  to  Spain,  but  of  such  importance 
to  Great  Britain  that  it  is  impossible  to  suppose  her  indifferent  to 
them."1 

John  Quincy  Adams  revealed  thus  an  attitude  of  suspicion  to- 
ward France  and  toward  Great  Britain.  President  Monroe 
asked  Jefferson  for  an  opinion  on  Canning's  propositions.  Jeffer- 
son replied,  "The  question  presented  ...  is  the  most  momentous 
which  has  ever  been  offered  to  my  contemplation  since  that  of 
independence.  That  made  us  a  nation,  this  sets  our  compass 
and  points  the  course  which  we  are  to  steer  through  the  ocean  of 

time  opening  on  us Our  first  and  fundamental  maxim 

should  be,  never  to  entangle  ourselves  in  the  broils  of  Europe;  our 
second,  never  to  suffer  Europe  to  intermeddle  with  cis-Atlantic 
affairs."  Madison  received  a  similar  request  for  an  opinion. 
In  his  reply  he  asked  "What  is  the  extent  of  Mr.  Canning's 
disclaimer  as  to  'the  remaining  possessions  of  Spain  in  America?' 
Does  it  exclude  future  views  of  acquiring  Porto  Rico,  etc.,  as 
well  as  Cuba?  It  leaves  Great  Britain  free,  as  I  undersand  it, 
in  relation  to  other  quarters  of  the  globe. "  3 

It  was  this  international  situation  with  respect  to  Cuba, 
as  it  appeared  to  American  statesmen,  that  inspired  the  Monroe 
Doctrine  as  announced  in  the  message  of  December  2,  1823. 
True,  Russia  came  in  for  her  share  of  suspicion.  She  had  given 
active  support  to  the  intervention  hi  Spain.  Her  minister  in 
Washington,  Baron  Tuyll,  informed  Secretary  Adams  that  Rus- 
sia had  determined  not  to  recognize  any  government  recently 
formed  in  the  New  World.  Adams  feared  that  Russia  planned 
the  extension  of  her  jurisdiction  indefinitely  southward  from 
Alaska  and  that,  under  the  circumstances,  Spain  could  not  and 
would  not  resist.  On  November  27, 1824,  almost  a  year  after  the 
announcement  of  the  Monroe  Doctrine,  he  declared  to  Baron 
Tuyll:  "that  the  United  States  of  America,  and  their  Govern- 
ment, could  not  see  with  indifference,  the  forcible  interposition 

1  H.  Ex.  Doc.  121,  31  Cong.,  i  sess.,  6. 
1  Moore,  Digest,  VI.:  394. 
'Ibid.,  VI.:  397. 


THE  TREATY  OF  PARIS,  1898  317 

of  any  European  power,  other  than  Spain,  either  to  restore  the 
dominion  of  Spain  over  her  emancipated  colonies  in  America,  or 
to  establish  monarchical  governments  in  those  countries,  or  to 
transfer  any  of  the  possessions  heretofore  or  yet  subject  to 
Spain  in  the  American  hemisphere,  to  any  other  European 
power. "  1 

The  vital  interests  of  the  United  States  in  Cuba  inspired 
the  Monroe  Doctrine.  From  that  time  on  those  interests  have 
been  permanent  with  slight  changes  in  form  only.  From  1823  to 
the  compromise  of  1850,  American  policy  toward  Cuba  was 
characterized  by  a  desire  to  prevent  the  transfer  of  the  island  by 
Spain  to  any  other  power. 

"Should  you  have  reason  to  suspect"  said  Secretary  Forsythe 
to  Minister  Vail  at  Madrid,  July  15,  1840,  "any  design  on  the 
part  of  Spain  to  transfer  voluntarily  her  title  to  the  island, 
whether  of  ownership  or  possession,  and  whether  permanent  or 
temporary,  to  Great  Britain,  or  any  other  power,  you  will 
distinctly  state  that  the  United  States  will  prevent  it,  at  all 
hazards,  as  they  will  any  foreign  military  occupation  whatso- 
ever."2 

During  the  decade  from  1850  to  1860,  American  policy  was 
characterized  by  efforts  to  annex  Cuba.  The  incorporation  of 
Texas  and  of  California  had  appealed  to  the  desire  for  expansion. 
Cuba  appeared  to  be  the  next  step  .  All  the  more  so,  because  by 
the  compromise  of  1850,  the  already  hemmed  in  slave  states  had 
been  deprived  of  their  natural  right  to  grow.  Polk  offered  Spain 
in  1849  one  hundred  million  dollars  for  Cuba.  Spain  refused. 
Then  appeared  the  Ostend  manifesto,  signed  by  Soule, 
Buchanan,  and  Mason,  declaring  that  if  Spain  should  refuse  one 
hundred  and  twenty  million  dollars,  then,  "by  every  law,  human 
and  divine,  we  shall  be  justified  in  wresting  it  from  Spain  if  we 

possess  the  power; "  Besides  the  volatile  spirit  of  Soul6 

two  reasons  prompted  this  action  at  Ostend.  There  existed  an 
apprehension  that  Spain  would  emancipate  the  slaves  on  the 
island,  which  would  render  local  conditions  even  more  unstable 

1  Moore,  Digest,  VI.:  401. 
*Ibid.,  VI.:  450. 


3l8  LEADING  AMERICAN  TREATIES 

and  would  have  a  disquieting  effect  upon  the  slaves  in  the  south- 
ern states.  Moreover,  Americans  had  acquired  an  easy  leader- 
ship in  the  trade  of  the  island  in  spite  of  obnoxious  restrictions. 
The  import  duty  on  flour  was  $10  a  barrel;  its  market  value  in 
the  United  States  was  $4.50.  This  caused  American  flour  to  go 
to  Spain  to  be  reshipped  in  Spanish  bottoms  to  Havana.  Spain 
refused  again  to  sell.  And  Secretary  Marcy  neutralized  the 
threat  of  war  contained  in  the  manifesto.  President  Buchanan 
appealed  to  Congress  in  three  successive  annual  messages  for 
cooperation  between  the  executive  and  legislative  departments 
in  the  acquisition  of  Cuba,  but  Congress  held  back. 

American  policy  toward  Cuba  during  the  years  from  1860  to 
1895  was  marked  by  non-interference  and  by  an  approval  of  the 
promised  liberal  reforms  in  the  island.  American  enterprize 
was  absorbed  in  domestic  problems.  Cuba  fought  a  ten  years' 
war  for  independence  between  1868  and  1878.  President  Grant 
favored  at  one  time  a  recognition  of  the  belligerency  of  the  Cu- 
bans, but  his  move  was  deftly  thwarted  by  Secretary  Fish. 
Shortly  afterward  came  the  gradual  abolition  of  slavery,  the  only 
important  reform  that  Spain  accomplished. 

In  1895  an  insurrection  broke  out  in  the  island  again.  Tomas 
Estrada  Palma  set  forth  the  causes  clearly  in  a  letter  to  Secretary 
Olney,  December  7,  1895:  "The  causes  of  the  insurrection  of 
1895  are  substantially  the  same  as  those  of  the  former  revolution 
lasting  from  1868  to  1878,  and  terminating  only  in  the  represen- 
tation of  the  Spanish  Government  that  Cuba  would  be  granted 
such  reforms  as  would  remove  the  grounds  of  complaint  on  the 
part  of  the  Cuban  people.  Unfortunately  the  hopes  thus  held 
out  have  never  been  realized.  The  representation  which  was  to 
be  given  to  the  Cubans  has  proven  absolutely  without  character; 
taxes  have  been  levied  anew  on  everything  conceivable;  the  of- 
fices in  the  island  have  increased,  but  the  officers  are  all  Span- 
iards; the  native  Cubans  have  been  left  with  no  public  duties 
whatsoever  to  perform  except  the  payment  of  taxes  to  the  gov- 
ernment and  blackmail  to  the  officials,  without  privilege  to  move 
from  place  to  place  in  the  Island  except  on  the  permission  of 
governmental  authority. 


THE  TREATY  OF  PARIS,   1898  319 

"Spain  has  framed  the  laws  so  that  natives  have  substanti- 
ally been  deprived  of  the  rights  of  suffrage.  The  taxes  levied 
have  been  almost  entirely  devoted  to  the  support  of  the  army  and 
navy  in  Cuba,  to  pay  interest  on  the  debt  that  Spain  has  saddled 
on  the  Island,  and  to  pay  salaries  of  the  vast  number  of  Spanish 
office-holders,  devoting  only  $746,000  for  internal  improvements 
out  of  the  $26,000,000  collected  by  tax.  No  public  schools  are 
within  the  reach  of  the  masses  for  their  education.  All  the  prin- 
cipal industries  of  the  Island  are  hampered  by  excessive  imposts. 
Her  commerce  with  every  country  but  Spain  has  been  crippled 
in  every  possible  manner,  as  can  be  seen  by  the  frequent  protests 
of  shipowners  and  merchants. 

"The  Cubans  have  no  security  of  person  or  property.  The 
judiciary  are  instruments  of  the  military  authorities.  Trial  by 
military  tribunals  can  be  ordered  at  any  time  at  the  will  of  the 
Captain-General.  There  is,  besides,  no  freedom  of  speech,  press 
or  religion. "  l 

To  this  day  these  charges  remain  as  one  of  the  fairest  indict- 
ments of  Spanish  rule  in  Cuba.  The  causes  of  the  American 
Revolution  in  1775  paled  besides  those  of  the  Cuban  revolution 
beginning  in  I8Q5.2  The  insurrection  had  been  skilfully  organ- 
ized through  numerous  secret  clubs  or  juntas,  not  unlike  the 
committees  of  correspondence.  Maximo  Gomez  commanded 
the  forces;  and  they  revealed  small  respect  for  the  rules  of  civi- 
lized warfare.  They  plundered  and  robbed  the  loyalists  and 
burned  sugar  mills  and  plantations.  The  revolt  was  financed 
largely  by  Cubans  and  their  friends  in  the  United  States.  Con- 
tributions came  the  more  willingly  because  in  1894  Spain  can- 
celled the  reciprocity  treaty  respecting  Cuba.  During  the  two 
complete  years  that  this  agreement  was  effective,  1892  and  1893, 
American  exports  to  the  island  had  jumped  from  $11,297,198  in 
1889  and  $12,669,509  in  1890  to  $17,662,411  in  1892  and 
$23,604,094  in  1893.  In  1895,  the  exports  fell  to  $12,533,260, 

1  Sen.  Doc.  231,  56  Cong.,  2  Sess.,  pt.  7.:  96. 

2  For  various  views  of  the  causes  of  the  Cuban  insurrection  see  N.  Amer. 
Rev.  161:  362  by  Alvarez;  Rev.  des   deux   mondes,    139:  553  by  Benoist; 
Le  Fur,  La  Guerre  Hispano-Americaiue:  Merignhac,  L'Autonomie  Cubaine  et 
le  Conftit  Hispano-Amerieaine  in  Revue  du  Droit  Public,  9:  237. 


320  LEADING  AMERICAN  TREATIES 

and  in  1896  to  $7,512,347. l  Trade  was  again  diverted  to  Spain 
and  then  sent  to  Cuba,  consequently  greatly  curtailed. 

The  sinister  General  Weyler  replaced  the  moderate  Marshal 
Campos  as  Captain-General.  Weyler  prosecuted  the  campaign 
with  creditable  vigor;  but  the  climate  and  the  topography 
favored  the  reconcentrado  policy.  The  insurgents  depended 
upon  the  farmers  for  supplies.  Consequently,  Weyler  ordered 
that  all  the  inhabitants  of  the  country  should  leave  their  homes 
within  eight  days  and  take  up  their  abode  in  places  assigned  to 
them  within  the  towns  occupied  by  Spanish  garrisons.  All  those 
who  were  found  outside  the  Spanish  lines  after  eight  days 
would  be  treated  as  rebels  irrespective  of  age  or  sex.  Trans- 
portation of  provisions  from  one  garrisoned  town  to  another  was 
prohibited  except  under  military  permit.  The  object  was  to 
destroy  the  sources  of  supplies  for  the  insurgents,  to  compel  the 
neutral  part  of  the  population  to  take  sides,  and  to  make  it 
easier  to  destroy  opposition.  This  concentration  policy  fell 
within  the  scope  of  good  usage  in  civilized  warfare,  provided  the 
obligation  of  supplying  the  concentrados  with  food,  clothing, 
medical  care,  shelter,  and  proper  immunity  of  person  was  ful- 
filled. 

The  result  of  Weyler's  proclamation  was  that  the  able  bodied 
men  in  the  country  joined  the  insurrection.  Their  wives, 
children,  and  the  feeble  men  reported  at  the  fortified  towns. 
Weyler  had  made  and  decided  to  make  no  provision  for  the  care 
of  these  dependents  of  the  insurgents.  He  reasoned  that  harsh 
treatment  of  the  wives  and  children  would  destroy  the  morale 
of  the  rebels  and  bring  them  more  quickly  to  submission.  The 
American  press  took  up  the  cause  of  the  suffering  noncomba- 
tants  and  no  doubt  exaggerated  the  evils  of  the  military  system. 
Eventually  between  seven  and  eight  hundred  American  citizens 
were  included  in  these  camps.  Leaving  alone  the  question  of  the 
legality  of  concentration  as  executed,  the  measure  turned  out  to 
be  highly  inexpedient.  It  was  impossible  to  take  the  means  of 
livelihood  away  from  the  native  Cuban,  vegetables  and  fruits 

1 U.  S.  Tariff  Commission,  Reciprocity  and  Commercial  Treaties:  182, 
Washington,  1919. 


THE  TREATY  OF  PARIS,  1898  321 

could  be  gathered  overnight.  The  insurrectionist  sources  of  sup- 
plies had  not  been  destroyed.  The  insurrection  had  grown 
greatly.  The  misery  of  the  wives,  children,  and  dependents  of 
the  insurgents,  which  would  have  been  great  enough  in  their 
shacks  in  the  country  and  largely  unobserved,  had  been  concen- 
trated and  accentuated  in  the  camps  under  Weyler's  orders  so 
that  newspapermen  could  appeal  to  public  opinion  in  America 
and  in  the  world  at  large. 

As  American  impatience  with  Spanish  irresponsibility  in  Cuba 
rose  the  Spaniards  began  to  suspect  that  the  United  States 
assisted  the  insurgents  and  thus  prolonged  the  internal  strife  of 
the  island.  The  Minister  of  State  pointed  out  to  Secretary 
Olney,  May  22,  1896,  proper  means  by  which  the  United  States 
could  contribute  to  the  pacification  of  Cuba.  The  United 
States  could  prosecute  with  more  vigor  "the  unlawful  expedi- 
tions of  some  of  its  citizens  to  Cuba"  and  provide  more  effective 
means  of  curtailing  "  the  powerful  assistance  which  the  rebellion 
finds  in  the  territory  of  the  great  American  Republic. "  J  Presi- 
dent Cleveland  had  recognized  not  the  independence  or  the 
belligerency  of  the  Cubans  but  then*  insurgency  on  June  12, 
1895 — a  new  move  in  international  relations,  although  the  Su- 
preme Court  found  later  that  such  action  had  been  in  contempla- 
tion by  Congress  while  passing  the  neutrality  law  of  i8i8.2 
The  purpose  was  to  announce  to  American  citizens  that  an 
insurrection  existed  in  Cuba,  that  it  was  temporarily  beyond  the 
control  of  Spain,  that  intercourse  with  the  insurgents  was  open, 
but  that  the  United  States  would  enforce  the  neutrality  laws.3 
With  respect  to  the  Cubans  the  United  States  did  not  step 
beyond  this  recognition  of  insurgency  until  after  the  Treaty  of 
Paris.  There  grew  in  the  early  part  of  McKinley's  administra- 
tion a  sentiment  in  favor  of  the  recognition  of  belligerency  and 
a  few  insisted  on  the  recognition  of  independence  and  interven- 
tion. These  few  were  composed  of  owners  of  plantations,  sugar 

1  Spanish  Diplomatic  Correspondence:  8. 

2  The  Three  Friends,  166  U.  S.  i. 

3  See  G.  G.  Wilson  on  Insurgency  in  Am.  Jour,  of  Int.  Law,  I.:  46.    Int. 
Law  Situations,  Naval  War  College,  1901:  108;    1902:  57;  1904:  26;  1907: 
127;  1912:  9. 


322  LEADING  AMERICAN  TREATIES 

mills,  railroads,  and  mines,  with  an  estimated  value  of 
$50,000,000. 

The  chief  distinction  between  the  belligerency  and  the  insur- 
gency of  the  Cubans  for  American  interests  was  that  under 
belligerency  Spain  would  immediately  acquire  the  right  of  visit- 
ing and  searching  American  merchant  vessels  on  the  high  seas. 
Under  the  recognition  of  insurgency  the  United  States  was  left 
free  to  enforce  its  own  neutral  obligations  toward  Spain  or  to- 
ward the  insurgents.  The  distinguished  Spanish  jurist,  Marquis 
de  Olivart,  criticized  severely  the  laxness  of  the  American  gov- 
ernment.1 He  collected  a  list  of  seventy-one  filibustering  expedi- 
tions, necessarily  incomplete,  to  Cuba  fitted  out  in  the  United 
States.  Of  these,  twenty-seven  landed  successfully  in  Cuba. 
Of  those  which  failed  the  United  States  stopped  thirty-three, 
Spain,  five;  storms,  four;  and  the  British  colonial  authorities, 
two.  The  most  famous  of  the  vessels  engaged,  "The  Three 
Friends,"  made  eight  voyages  and  "The  Dauntless"  made 
twelve.  The  insurgents  followed  closely  the  plans  of  the  Confed- 
erates in  Great  Britain  during  the  Civil  War.  The  merchant 
vessel  would  leave  port  with  clearance  papers  for  Santa  Martha, 
Kingston,  San  Salvador,  or  some  other  Gulf  port.  A  short 
distance  out  at  sea  the  vessel  would  be  met  by  a  tug  or  lighter 
loaded  with  guns,  ammunition,  supplies,  and  Cubans  returning 
from  exile  to  join  their  compatriots.  These  would  then  be 
transferred  to  the  vessel,  which  would  at  times  go  directly  to 
Pinar  del  Rio  or  Camaguey  or  to  some  port  on  the  Cuban  shore 
under  the  control  of  the  insurgents;  but  more  frequently  the 
insurgents  would  send  out  boats  to  meet  the  vessel  either  on  the 
high  seas  or  in  some  British  or  Mexican  port,  take  the  cargo  and 
the  returning  patriots,  and  thus  allow  the  vessel  to  proceed  to 
its  destination  and  return  to  New  York  with  a  cargo  of  fruit. 

It  was  consequently  difficult  to  collect  evidence  sufficient  for 
conviction  under  the  neutrality  act.  At  times  the  judge  in  his 
charge  to  the  jury  was  groping  for  a  definition  of  a  military 
expedition,  as  did  Judge  Wales  in  U.  S.  v.  Pena  2  and  Judge 

1  Revue  de  droit  international  public,  V.:  358,  499. 
»6g  Fed.  Rep.  983. 


THE  TREATY  OF  PARIS,  1898  323 

Brawley  in  the  "Laurada."  1  In  the  case  of  United  States  v. 
Hart  et  al.,2  decided  by  the  circuit  court  in  April,  1896,  several 
personages  were  involved.  Hart  chartered  vessels  frequently 
for  the  Cuban  service.  Four  times  he  was  tried  for  violation  of 
the  neutrality  act  and  convicted  only  once.  In  this  case  the 
"Bermuda"  left  New  York  on  February  24,  1896,  for  Jamaica 
with  sixty  unarmed  men  on  board.  Three  other  vessels  left  at 
the  same  time  having  on  board  men,  arms,  and  equipment. 
Before  the  transshipment  to  the  "Bermuda"  could  take  place  at 
sea  a  revenue  cutter  arrested  several  of  the  passengers,  all  of 
them  leading  Cuban  agents.  Among  them  were  Calixto  Garcia, 
Hart,  and  Buena  Brabanzon.  Judge  Brown  instructed  the  jury 
that  there  were  five  essential  attributes  of  a  military  expedition, 
soldiers,  officers,  arms,  organization  under  a  definite  command, 
and  a  hostile  purpose  of  attack  or  defense.  The  jury  failed  to 
find  that  Hart's  expedition  had  all  of  these  attributes,  with  the 
result  that  the  "  Bermuda  "  made  two  expeditions  hi  rapid  succes- 
sion. 

Two  of  the  cases  reached  the  Supreme  Court.  The  "  Horsa  " 
was  a  Danish  steamer  that  left  Philadelphia,  November  9,  1895, 
for  Jamaica.  Passing  Cape  May  she  turned  northward  as  far  as 
Barnegat.  There  at  night,  beyond  the  marine  league,  a  steam 
lighter  from  New  York  met  her  and  transferred  to  her  several 
cases,  marked  merchandise,  and  about  forty  passengers,  mostly 
Cubans.  On  the  voyage  the  merchandise  turned  out  to  be  arms, 
ammunition,  and  a  Maxim  gun.  The  passengers  received  mili- 
tary drill.  The  expedition  was  successful.  On  returning  to 
Philadelphia,  the  captain,  Wiborg,  and  the  two  mates,  Petersen 
and  Johansen,  were  arrested.  The  jury  decided  that  they  had 
engaged  in  a  military  expedition  under  the  neutrality  law;  and 
the  court  sentenced  them  accordingly.  They  appealed  to  the 
Supreme  Court  on  a  writ  of  error.  Chief  Justice  Fuller  delivered 
the  opinion  which  held  that  the  act  of  drilling  was  immaterial, 
that  when  they  had  organized  to  go  to  Cuba  to  make  war  on 
Spain  and  had  provided  themselves  with  the  means,  they  had 


1  70  Fed.  Rep.  972;  75  Fed.  Rep.  267. 

2  74  Fed.  Rep.  725. 


324  LEADING  AMERICAN  TREATIES 

then  engaged  in  a  military  expedition.  The  question  arose 
whether  Wiborg  and  his  associates  were  responsible,  whether 
they  knew  when  they  left  Philadelphia  that  they  were  engaging  in 
a  military  enterprise.  The  opinion  held  Wiborg  responsible,  but 
the  cases  of  the  mates  were  remanded  to  the  district  court  for  a 
rehearing.1  Undaunted  by  this  strict  interpretation  of  the 
neutrality  law,  Hart  organized  and  carried  out  a  successful 
expedition  in  August  of  the  same  year,  was  brought  into  court, 
convicted,  and  sentenced  to  pay  a  fine  of  $500  and  to  serve  two 
years  in  prison.2 

The  other  case  to  reach  the  Supreme  Court  was  the  "Three 
Friends. "  3  The  collector  of  customs  seized  the  vessel  in  the 
St.  John's  River,  Florida,  on  the  complaint  that  she  had  arms 
and  munitions  on  board  intended  for  the  Cubans.  A  suit  for 
condemnation  of  the  vessel  was  duly  entered  in  the  district  court. 
Judge  Locke  released  the  vessel  on  the  ground  that  the  libel 
failed  to  show  any  intent  that  she  was  to  be  employed  "in  the 
service  of  a  foreign  prince,  or  state,  or  of  a  colony,  district  or 
people  with  whom  the  United  States  are  at  peace,  or  of  any  body 
politic  recognized  by  or  known  to  the  United  States  as  a  body 
politic. "  Chief  Justice  Fuller  delivered  the  opinion  holding  that 
the  recognition  of  the  insurgents  as  belligerents  was  not  neces- 
sary and  that  the  recognition  of  insurgency  by  the  President  was 
ample  to  bring  into  effect  the  neutrality  law.  In  conclusion 
it  may  be  said  that  lax  as  the  enforcement  of  the  American 
neutrality  law  may  have  appeared  to  Spaniards,  yet  the  Spanish 
government  did  not  and  could  not  charge  the  United  States  with 
failure  to  observe  the  due  diligence  clauses  of  the  Treaty  of 
Washington.  Nevertheless,  filibustering  influenced  profoundly 
public  opinion  in  Spam;  and  when  the  Spanish  military  campaign 
failed  to  bring  results  in  Cuba,  the  government  in  Madrid  shifted 
the  responsibility  from  itself  to  that  in  Washington. 

The  case  of  the  "  Competitor"  brought  out  clearly  the  disputes 
on  the  treaty  rights  of  Americans.  This  schooner  left  Key  West 

1  Wiborg,  ».  U.  S.  163  U.  S.  632. 

*  78  Fed.  Rep.  868;  84  Fed.  Rep.  619,  799. 

» 166  U.  S.  i.    See  also  78  Fed.  Rep.  175;  89  Fed.  Rep.  207. 


THE  TREATY  OF  PARIS,  1898  325 

for  Port  Lemon,  Florida,  with  twenty-four  passengers.  When 
off  Cape  Sable,  the  passengers  took  charge  by  force,  received 
twenty-five  others  on  board  together  with  arms  and  ammuni- 
tion. The  schooner  reached  the  Cuban  shore  at  Point  Berracos, 
April  25, 1896,  and  landed  her  passengers  and  material.  Shortly 
afterward  she  was  sighted  and  captured  by  the  Spanish  armed 
launch,  "Mensajora."  The  master,  Laborde,  and  the  mate, 
Gildea,  tried  to  escape  by  swimming  ashore.  They  were  taken 
together  with  three  others  to  Havana.  Laborde  claimed  Ameri- 
can citizenship  by  birth,  having  been  born  in  New  Orleans  of 
Cuban  parents.  Gildea  claimed  to  have  been  born  in  Liverpool 
and  was  therefore  a  British  subject.  They  appeared  before  a 
summary  court-martial  charged  with  rebellion  and  piracy.  They 
pleaded  innocence  on  the  ground  that  the  passengers  had  taken 
possession  of  the  vessel  by  force  off  Cape  Sable.  Inasmuch  as  all 
American  seamen,  whether  citizens  or  not,  are  entitled  to  pro- 
tection, Consul  General  Williams  called  attention  to  the  terms  of 
the  Treaty  of  1795  and  the  protocol  of  1877,  the  latter  of  which 
stated:  "No  citizen  of  the  United  States  residing  in  Spam, 
her  adjacent  islands,  or  her  ultramarine  possessions,  charged 
with  acts  of  sedition,  treason  or  conspiracy  against  the  institu- 
tions, the  public  security,  the  integrity  of  the  territory  or  against 
the  Supreme  Government,  or  any  other  crime  whatsoever,  shall 
be  subject  to  trial  by  any  exceptional  tribunal,  but  exclusively  by 
the  ordinary  jurisdiction,  except  in  the  case  of  being  captured 
with  arms  in  hand. "  l  This  protocol  bore  the  signature  of  Sefior 
Collantes,  the  Spanish  Minister  of  State,  and  the  signature  as 
well  as  the  earmarks  of  the  draftsmanship  of  Caleb  Gushing, 
American  Minister  to  Madrid. 

The  judge-advocate  argued  that  all  foreigners  were  subject  to 
the  laws  and  courts  of  Spain  for  crimes  committed  within  Spanish 
territory,  that  the  protocol  was  merely  an  expression  of  private 
opinion  and  constituted  no  addition  or  complement  of  any  pre- 
existing treaty,  and  that,  even  if  the  protocol  were  binding  it 
applied  to  resident  American  citizens,  which  meant  that  such 
persons  must  be  registered  with  the  Cuban  authorities  and  with 
1Malloy,  Treaties,  II.:  1669. 


326  LEADING  AMERICAN  TREATIES 

their  consulate.  These  persons  were  not.  Furthermore,  the 
provision  did  not  apply  to  those  arrested  with  arms  in  hand.1 
The  court-martial  pronounced  the  death  sentence  upon  all  those 
captured  except  one. 

Heated  debates  on  the  protection  of  citizens  abroad  took  place 
hi  the  United  States  Senate.  Newspapers  carried  accounts  of  the 
long  since  forgotten  "Virginius,"  which  had  been  captured  out- 
side the  marine  league  of  Cuba  in  1873,  taken  into  Havana,  and 
a  large  number  of  passengers  and  crew  tried  for  piracy  by  a  sum- 
mary court-martial,  which  had  completed  its  labors  in  one  day. 
The  result  had  been  that  fifty-three  American  citizens  and 
British  subjects  were  summarily  shot.  And  the  protocol  of  1877 
had  been  drafted  as  an  interpretation  of  Articles  VII  and  XX 
of  the  Treaty  of  1795  in  order  to  prevent  such  occurences  in  the 
future.  And  now  the  public  of  Havana  and  Madrid  demanded 
that  the  prisoners  from  the  "Competitor"  be  likewise  shot. 

Fortunately,  the  Department  of  State  had  been  able  to  com- 
municate with  Madrid;  and  the  Spanish  government  telegraphed 
the  Captain-General  of  Cuba  that  all  action  should  be  suspended 
until  the  record  of  the  court-martial  could  be  reviewed.  The 
death  sentence  had  been  pronounced  on  May  8,  1896.  The  case 
was  under  consideration  at  Madrid  until  November,  1897,  when 
all  of  the  prisoners  were  released.  Writing  in  1902,  the  Marquis 
de  Olivart  recognized  that  the  protocol  was  binding,  that  at 
least  the  master  and  the  mate  captured  in  the  water  were  un- 
armed, that  they  were  not  pirates,  and  that  the  suspension  of  the 
death  sentence  by  Minister  Canovas  postponed  for  two  years  the 
opening  of  hostilities  with  the  United  States.2 

Sefior  Canovas  was  assassinated  in  August,  1897.  General 
Azcanaga  succeeded  him  and  lasted  a  month.  Sefior  Sagas ta 
assumed  then  the  leadership.  He  recalled  General  Weyler  and 
sent  General  Blanco  with  instructions  to  abandon  the  concentra- 
tion policy.  Sagasta  revealed  a  commendable  desire  to  grant 
reforms  in  Cuba  provided  the  insurgents  would  yield,  but  these 
declared  for  independence.  The  United  States  expressed  its 

'Sen.  Doc.  79,  54  Cong.,  2  Sess.,  212. 

1  Revue  Ge'ne'rale  de  Droit  International  Public,  IX. :  200. 


THE  TREATY  OF  PARIS,   1898  327 

sympathy  with  the  reform  proposals  but  confessed  apprehension 
about  further  futile  experiments  by  Spain  in  Cuba. 

McKinley  appealed  to  Congress,  May,  1897,  for  $50,000  as  a 
relief  fund  and  for  transporting  American  citizens  to  the  United 
States.  Congress  voted  the  amount  promptly.  On  Christmas 
Eve  the  President  appealed  to  the  American  people  for  voluntary 
contributions.  The  authorities  at  Havana  had  been  consulted 
and  they  agreed  to  admit  all  articles  for  charity  duty  free.  This 
move  brought  home  to  the  Americans  concretely  the  suffering  in 
Cuba. 

In  January  of  1898  the  supporters  of  the  old  regime  in  Cuba 
engaged  in  riots  and  revolt.  The  offices  of  the  three  newspapers 
advocating  autonomy  in  Havana  were  attacked  by  mobs.  Con- 
sul-General  Fitzhugh  Lee  became  alarmed  for  the  safety  of  Amer- 
ican life  and  property  and  asked  for  the  presence  of  American 
naval  vessels  in  the  harbor.  In  response,  the  "Maine"  was  or- 
dered to  Havana,  January  24.  The  Spanish  officials  received  her 
with  formal  courtesy  and  promised  to  reciprocate  by  sending  a 
Spanish  war  vessel  to  New  York. 

Another  unfortunate  incident  occurred,  which  destroyed 
American  confidence  in  Spanish  diplomatic  conduct;  and  this 
at  a  very  critical  time.  The  Spanish  minister  in  Washington, 
Dupuy  de  Lome,  wrote  a  letter  in  December,  1897,  to  a  Spanish 
agent  in  Cuba  in  which  he  cast  reflections  on  the  President. 
Some  Cubans  intercepted  the  letter;  and  on  February  8,  1898, 
the  New  York  Journal  published  it.  McKinley  was  spoken  of  as 
"weak  and  a  bidder  for  the  admiration  of  the  crowd,  besides 
being  a  would  be  politician  who  tries  to  leave  a  door  open  behind 
himself  while  keeping  on  good  terms  with  the  jingoes  of  his 
party."  He  went  on,  "It  would  be  very  advantageous  to  take 
up,  even  if  only  for  effect,  the  question  of  commercial  relations, 
and  to  have  a  man  of  some  prominence  sent  hither  in  order  that 
I  may  make  use  of  him  here  to  carry  on  a  propaganda  among  the 
junta  and  to  try  to  win  over  the  refugees."  l  Dupuy  de  Lome 
admitted  the  authorship  and  resigned  immediately. 

Hostile  sentiment  increased  in  both  countries.  Minister  Wood- 
foreign  Relations,  1898:  1007. 


328  LEADING  AMERICAN  TREATIES 

ford  reported,  February  12, 1898,  from  Madrid,  "Spanish  feeling 
grows  more  bitter  against  the  United  States  each  day."  The 
Spanish  government  urged  upon  him  that  it  had  done  all  within 
its  power,  that  the  President  should  issue  a  new  proclamation 
of  neutrality,  "prevent  filibustering  expeditions,  and  break  up 
the  New  York  junta  at  once. "  l  In  Congress  the  pacific  element 
tried  on  February  14  to  prevent  an  open  rupture  by  proposing 
and  securing  the  passage  of  a  resolution  providing  for  the  publica- 
tion of  the  consular  correspondence  relating  to  concentration 
and  autonomy  hi  Cuba.  The  situation  on  February  14  had  the 
import  of  war. 

On  the  next  day  the  "Maine"  was  blown  up  in  Havana  har- 
bor with  a  loss  of  260  men.  The  Spanish  officials  expressed  re- 
gret and  sympathy  and  extended  every  courtesy.  On  a  point  of 
law  General  Blanco  maintained  that  the  "Maine"  had  lost  its 
exterritoriality  when  it  became  a  wreck  and  that  the  Spanish 
authorities  alone  had  the  right  to  investigate  the  disaster.  But 
the  home  government  waived  this  contention  and  permitted  the 
United  States  board  of  inquiry  to  proceed.  The  board  found 
that  the  forcing  upward  of  the  keel  and  the  bottom  plating 
thirty  feet  above  their  normal  position  could  have  been  produced 
only  by  the  explosion  of  a  mine  under  the  bottom  of  the  ship. 
But  no  evidence  was  obtained  fixing  responsibility  on  any  person 
or  persons.2  Nor  has  such  evidence  been  found  to  the  present 
day. 

Secretary  Sherman  wrote  to  Minister  Woodford  that  a  grave 
responsibility  appeared  to  rest  upon  the  Spanish  government. 
The  "Maine"  could  have  been  excluded  from  Havana  but  she 
had  entered  with  the  express  consent  of  Spain.  Spain  had  con- 
trol of  the  harbor  and  upon  her  rested  the  responsibility  of  pro- 
tecting life  and  property  there  and  especially  the  public  vessel 
and  the  sailors  of  a  friendly  power.  The  United  States  made  no 
demand  for  reparation,  but  left  that  matter  to  Spain's  voluntary 
action.  Woodford  was  instructed  to  notify  Spain,  March  20, 
1898,  that  April  15  was  none  too  early  for  the  accomplishment  of 

'Foreign  Relations,    1898:    ion. 
'Ibid.,   1898:   1037. 


THE  TREATY  OF  PARIS,   1898  329 

an  honorable  peace  in  Cuba.  The  Spanish  officials  temporized. 
On  March  27  the  demands  of  the  United  States  were  made 
specific:  i.  Armistice  until  October  ist.  In  the  meantime 
negotiations  for  peace  between  Spain  and  the  insurgents  through 
the  friendly  offices  of  the  President.  2.  Immediate  revocation 
of  the  reconcentrado  order.  The  needy  were  to  be  relieved  with 
provisions  from  the  United  States.  And  3,  which  was  inserted  as 
desirable,  if  terms  of  peace  were  not  settled  by  October  i  the 
President  should  be  the  final  arbiter  between  Spain  and  the 
insurgents.1 

Spain  realized  the  seriousness  of  the  situation.  Three  days 
later  General  Blanco  revoked  the  concentration  orders  with 
instructions  for  relief.2  Spain  proposed  an  arbitration  of  the 
"Maine"  affair.  She  conceded  a  willingness  to  accept  an  armis- 
tice if  the  insurgents  would  ask  for  it;  but  General  Blanco  was  to 
determine  the  terms  and  the  duration.3  Woodford  expressed 
himself  as  unable  to  believe  that  Spain  would  refuse  on  a  mere 
question  of  punctilio.  The  Pope  sensed  the  gravity  of  the 
situation  and  offered  his  services  as  mediator.  The  holy  father 
acted  with  the  best  of  motives  and  his  offer  was  so  accepted  in 
Spain  and  in  Europe  but  not  so  by  the  American  press,  which 
assumed  that  this  furnished  evidence  that  Spain  was  searching 
for  support.  On  April  6,  1898,  the  diplomatic  representatives 
of  Germany,  Austria,  France,  Great  Britain,  Italy,  and  Russia 
called  on  President  McKinley  and  presented  an  appeal  for  peace. 
Two  days  later  the  representatives  of  the  same  countries  hi 
Madrid  called  on  the  Minister  of  State  and  presented  the  same 
appeal  with  a  recommendation  that  Spain  comply  with  the 
demands  of  the  United  States.  Spain  yielded  and  General 
Blanco  issued  a  proclamation  temporarily  suspending  hostilities 
in  Cuba,4  April  9,  1898.  Spain  had  reluctantly  conceded  sub- 
stantially every  demand  of  the  United  States;  but  it  was  too  late 
to  arrest  the  hostile  momentum  in  both  countries  and  to  re- 
establish mutual  confidence. 

foreign  Relations,   1898:  711. 
2  Ibid.,  1898:  725. 
slbid.,   1898:  726. 
4  Ibid.,   1898:  750. 


330  LEADING  AMERICAN  TREATIES 

In  his  message  of  April  n,  the  President  reviewed  the  Cuban 
situation.  He  mentioned  four  grounds  for  intervention,  human- 
ity, protection  to  American  life  and  property,  to  safeguard 
commerce,  and  to  suppress  an  international  nuisance  which 
compelled  the  United  States  to  maintain  a  semi-war  footing. 
He  summarized  the  negotiations  and  closed  with  a  request  to 
Congress  to  clothe  him  with  full  power  to  terminate  the  hostili- 
ties in  Cuba  and  to  secure  the  establishment  of  a  stable  govern- 
ment there,  "capable  of  maintaining  order  and  observing  its 
international  obligations."  In  turn  the  Cubans  refused  to 
accept  the  proffered  armistice.  The  Spanish  council  of  min- 
isters denounced  the  President's  message  as  an  open  interference 
in  the  domestic  affairs  of  Spain.  Congress  authorized  interven- 
tion by  a  joint  resolution  on  April  19;  the  President  signed  it  on 
the  next  day;  and  Spam  considered  that  act  as  a  declaration  of 
war.  The  United  States  declared  war  on  April  26,  with  a  retro- 
active clause  to  April  21,  1898. l 

The  subsequent  military  operations  will  receive  no  description 
here.  Dewey's  victory  hi  Manila  Bay,  the  victory  of  Sampson 
and  Schley  at  Santiago,  the  campaign  of  Shaf  ter  in  Cuba,  and  the 
impending  campaign  of  Miles  in  Porto  Rico  convinced  Spain  by 
July  18,  1898,  that  the  time  had  arrived  for  negotiating  an  ar- 
mistice.2 Due  to  telegraphic  and  other  delays  the  French  ambas- 
sador in  Washington  could  not  present  this  request  on  behalf  of 
Spain  to  the  Department  of  State  until  July  26.  The  United 
States  delivered  on  July  30  the  terms  not  of  an  armistice  but  of  a 
preliminary  peace.  First,  Spain  should  evacuate  Cuba  and 
relinquish  all  sovereignty  over  the  island.  Second,  the  President 
would  not  for  the  time  being  ask  for  a  pecuniary  indemnity.  But 
to  compensate  for  the  losses  of  the  United  States  and  to  satisfy 
the  claims  of  Americans  the  President  required  the  cession  to  the 
United  States  of  Porto  Rico  and  the  remaining  Spanish  islands  in 
the  West  Indies  and  also  one  of  the  Ladrones  to  be  selected  by 
the  United  States.  Third,  on  similar  grounds  the  United  States 
would  occupy  and  hold  "the  city,  bay,  and  harbor  of  Manila 

1  Foreign  Relations,  1898:  772. 

•Spanish  Diplomatic  Correspondence  and  Documents,  1806-1900:  200. 


THE  TREATY  OF  PARIS,  1898  331 

pending  the  conclusion  of  a  treaty  of  peace  which  shall  determine 
the  control,  disposition,  and  government  of  the  Philippines. "  1 
The  original  draft  had  the  word  "possession"  instead  of  "dis- 
position." The  substitution  was  made  at  the  request  of  Am- 
bassador Jules  Cambon. 

Spain  thought  the  terms  severe  and  made  an  effort  to  save  her 
colonies  by  yielding  Cuba  alone.  The  United  States  replied  by 
embodying  the  terms  in  a  protocol  which  Spam  might  sign  or 
reject.  The  terms  of  evacuation  of  the  colonies  by  Spain  were 
made  more  exact  and  more  stringent.  The  protocol  specified 
also  that  each  party  should  appoint  not  more  than  five  commis- 
sioners to  negotiate  a  peace  in  Paris.  And  it  stipulated  that  as 
soon  as  the  protocol  was  signed  hostilites  were  to  be  suspended, 
and  notice  to  that  effect  was  to  be  given  as  soon  as  possible  to  the 
military  and  naval  commanders.2  This  protocol  served  then  as 
an  armistice  and  a  preliminary  peace  settlement.  The  act  of 
signing  took  place  on  August  12,  1898. 

A  dispute  arose  as  to  when  the  armistice  had  gone  into  effect. 
Spain  contended  that  it  became  effective  immediately  upon 
signing.  The  United  States  maintained  that  it  became  so  on 
notification  to  the  commanders.  The  American  command  in  the 
Philippines  received  the  notice  on  August  16.  On  August  13 
Manila  had  been  bombarded  and  on  the  next  day  that  city  had 
surrendered.  These  acts  accomplished  the  end  agreed  upon  hi 
the  third  article  of  the  protocol,  "That  the  United  States  will 
occupy  and  hold  the  city,  bay,  and  harbor  of  Manila  pending  the 
conclusion  of  a  treaty  ..."  Differences  arose  also  over  the 
meaning  of  "evacuation"  of  Cuba;  whether  it  meant  military 
evacuation  or  civil  evacuation  as  well.  Finally,  the  United 
States  fixed  the  date  arbitrarily  for  both  to  take  place  on  Decem- 
ber i,  which  was  extended,  on  the  application  of  Spain,  to  Jan- 
uary i,  1899,  when  the  island  was  delivered  to  the  American 
officers. 

The  peace  commissioners  met  in  the  hall  of  the  ministry  of 
foreign  affairs  in  Paris  on  October  i,  1899.  President  McKinley 

1  Foreign  Relations,  1898:  821. 

2  Ibid.,  1898:  824. 


332  LEADING  AMERICAN  TREATIES 

had  appointed  the  Secretary  of  State,  William  R.  Day;  the  chair- 
man of  the  Senate  committee  on  foreign  relations,  Cushman 
K.  Davis;  the  ranking  Democratic  member  of  that  committee, 
George  Gray;  another  Republican  member  of  the  same  commit- 
tee, William  P.  Frye;  and  the  editor  of  the  New  York  Tribune, 
Whitelaw  Reid.  Premier  Sagasta  had  named  Don  Eugenio 
Montero  Rios,  President  of  the  Senate;  Don  Buenaventura  de 
Abarzuza,  Senator  and  former  Minister  of  the  Colonies;  Don 
Jose  de  Garnica,  Deputy  in  the  Cortes  and  Associate  Justice  of 
the  Supreme  Court;  Don  Wenceslao  Ramirez  de  Villa-Urrutia, 
Minister  to  Belgium;  and  General  Rafeal  Cerero.  The  secre- 
taries were  Professor  John  Bassett  Moore  and  Don  Emilio  de 
Ojeda. 

At  this  first  session  the  Spanish  commissioners  presented  a 
demand  for  a  return  to  the  status  quo  in  the  Philippines  of 
August  12,  the  date  of  the  signing  of  the  protocol.1  The  Ameri- 
cans replied  at  the  next  session,  October  3,  that  in  the  demand 
for  the  status  quo  questions  of  fact  and  of  law  were  involved 
which  fell  outside  the  scope  of  the  negotiations  for  a  treaty  of 
peace  and,  consequently,  should  be  settled  through  diplomatic 
channels.2  The  Americans  then  proposed  Articles  I  and  II  of 
the  treaty.  I.  "  Spain  relinquishes  all  claim  of  sovereignty  over 
and  title  to  Cuba. "  II.  "Spain  cedes  to  the  United  States  the 
island  of  Porto  Rico  and  other  islands  now  under  Spanish  sove- 
reignty in  the  West  Indies,  and  the  island  of  Guam  in  the 
Marianas  or  Ladrones. " 

At  the  third  meeting,  in  accordance  with  instructions,  the  sec- 
retaries reported  a  rule  that  if  a  proposition  were  presented  and 
rejected  each  side  should  have  the  right  to  file  a  brief  memoran- 
dum of  reasons  for  or  against  the  proposition.  This  was  adopted. 
The  significance  lay  in  the  fact  that  if  the  negotiations  should 
fail,  the  minutes  would  show  upon  which  party  the  cause  there- 
fore rested.  The  Spaniards  preceded  to  reserve  the  rights  of 
Spain  to  take  up  again  the  question  of  the  status  quo  as  of  August 
12  in  the  Philippines.  They  agreed  to  relinquish  sovereignty 

'Treaty  of  Paris,  Protocol:   15. 
'Ibid.,  21. 


THE  TREATY  OF  PARIS,  1898  333 

over  Cuba  and  to  transfer  it  to  the  United  States.  But  they 
proposed  also  to  relinquish  and  to  transfer  to  the  United  States 
all  the  obligations  of  Cuba  incurred  in  a  constitutional  manner. 
This  meant  charges  for  the  military,  civil,  and  ecclesiastical 
services  in  the  island,  including  pensions.1 

In  their  reply  the  Americans  stood  squarely  on  the  provision 
of  the  protocol  of  August  12,  that  "Spam  will  relinquish  all  claim 
of  sovereignty  over  and  title  to  Cuba. "  Spain  proposed  to  yoke 
with  this  relinquishment  of  sovereignty  a  mass  of  indebtedness 
which  the  United  States  could  not  admit.  The  Spanish  com- 
missioners argued  firmly  that  these  debts  belonged  to  sover- 
eignty, that  all  of  the  South  and  Central  American  states  had 
assumed  similar  obligations  when  they  achieved  their  independ- 
ence and  that  Napoleon  had  respected  this  principle.  Spain 
placed  her  sovereignty  over  Cuba  at  the  disposition  of  the  United 
States  "in  the  condition  which  she  now  holds  it,  and  therefore, 
with  the  rights  and  charges  at  present  constituting  it. "  2 

In  the  succeeding  sessions  each  side  failed  in  its  efforts  to 
convince  the  other.  The  American  commissioners  recognized 
the  strength  of  the  Spanish  contention  and  telegraphed  home, 
October  25,  whether  they  might  offer  the  good  offices  of  the 
United  States  with  the  Cuban  people  to  accept  such  indebted- 
ness as  had  been  incurred  for  existing  public  improvements  of  a 
pacific  character.3  Secretary  Hay  replied  that  no  part  of  the 
Cuban  debt  would  be  assumed  and  that  the  United  States  would 
not  consent  to  use  its  good  offices  with  the  Cubans  for  such  a 
purpose.4  This  resulted  in  a  repetition  and  enlargement  of 
argument.  The  Spanish  commissioners  said  they  dared  not  return 
to  Spain  with  an  assumption  of  the  Cuban  debt  unless  some 
compensation  were  offered  in  some  other  point.  The  American 
Ambassador  in  Paris,  General  Porter,  suggested  that  the  United 
States  might  be  willing  to  make  concessions  in  the  Philippines.5 

At  the  next  session,  October  26,  the  Spanish  commissioners 

1  Treaty  of  Paris,  Protocol:   27. 

2  Ibid.,  43. 

8  Foreign  Relations,   1898:931. 

4  Ibid.,  1898:  932. 

5  Spanish  Dip.  Correspondence  and  Documents,  1896-1900:  299. 


334  LEADING  AMERICAN  TREATIES 

agreed  to  waive  tentatively  their  demands  relating  to  the  Cuban 
debt  and  asked  the  Americans  for  the  terms  on  the  Philippines. 
Not  until  October  31  did  the  Americans  present  these  terms. 
They  had  cabled  to  Secretary  Hay,  who  instructed  them  to  claim 
the  entire  Philippine  archipelago  by  conquest,  but  the  disposi- 
tion, control,  and  government  were  subjects  for  negotiation.  He 
was  aware  of  the  distressed  financial  condition  of  Spain  and  what- 
ever consideration  the  United  States  might  show  must  come 
from  a  sense  of  generosity  and  benevolence.1  The  Americans 
asked  accordingly  for  all  of  the  Philippines  and  expressed  a 
willingness  to  assume  the  indebtedness  of  Spain  incurred  for 
public  works  and  improvements  of  a  pacific  character.2  The 
Spaniards  asked  for  an  adjournment  in  order  to  examine  the 
proposal. 

The  Spaniards  gave  their  reply  on  November  4.  They  re- 
jected the  proposal  to  cede  the  Philippines  on  the  ground  that  it 
was  not  within  the  stipulation  of  the  protocol  of  August  12, 
which  stated:  "The  United  States  shall  occupy  and  hold  the  city, 
the  bay  and  the  harbor  of  Manila  pending  the  conclusion  of  a 
treaty  of  peace  which  shall  determine  the  control,  the  disposi- 
tion, and  the  government  of  the  Philippine  Islands."  This 
meant  a  temporary  and  provisional  occupation  of  one  port  in  the 
islands.  The  protocol  contained  no  suggestion  of  a  cession  of  the 
sovereignty  over  the  entire  archipelago.  The  temporary  charac- 
ter of  this  occupation  was  supported  by  documents  from  the 
French  Foreign  Office  based  upon  the  statements  of  President 
McKinley.  Furthermore,  the  United  States  had  made  compli- 
ance with  the  protocol  unduly  harsh  by  allowing  General  Mer- 
ritt  to  bombard  Manila  and  compel  its  surrender  and  he  had  not 
yet  returnee!  the  arms  delivered.  As  a  counter  proposal  the 
Spaniards  stated  that  in  accordance  with  the  protocol  the 
treaty  should  embody  the  immediate  delivery  of  Manila  to 
Spain,  the  release  of  the  garrison,  the  return  to  Spain  of  all 
funds  and  public  property  taken,  and  the  indemnification  of 
Spain  for  all  damages  incurred,  including  those  wrought  by  the 

1  Foreign  Relations,  1898:  937. 
•Treaty  of  Paris,  Protocol:  107. 


THE  TREATY  OF  PARIS,  1898  335 

insurgents  who  would  have  been  held  in  check  had  the  garrison 
been  free.1 

In  their  reply  on  November  9  the  Americans  made  clear  that 
they  based  their  claim  to  the  Philippines  not  on  the  right  to 
hold  Manila  but  on  the  fact  that  the  protocol  included  the  Philip- 
pines with  Porto  Rico  and  one  island  in  theLadrones  in  the  scope 
of  the  indemnity.  How  could  this  indemnity  be  fulfilled  if  the 
Spanish  government  in  the  islands  should  remain  untouched? 
The  protocol  stated  also  that  the  "control,  disposition  and  gov- 
ernment of  the  Philippines"  should  be  included  in  the  peace 
negotiations.  Ambassador  Porter  had  gone  to  the  French  For- 
eign Office  to  ascertain  the  character  of  the  documents  mentioned 
by  the  Spanish  negotiators.  The  Minister  for  Foreign  Affairs 
had  stated  that  the  documents  referred  to  contained  "simply  a 
brief  resume  of  the  general  features  of  the  preliminary  peace 
negotiations,"  and  that  the  Foreign  Office  had  made  no  attempt 
to  interpret  the  protocol.  The  Americans  stated  that  the  United 
States  might  limit  its  demand  to  a  pecuniary  indemnity  covering 
the  enormous  cost  of  the  war,  but  the  demand  actually  was  for 
Porto  Rico,  Guam,  and  the  Philippines.  And  what  was  Spain 
asked  to  give  up  in  the  Philippines?  A  country  constantly  in 
rebellion,  one  which  she  would  have  to  rule  by  force  of  arms.2 
Both  parties  inserted  in  the  record  memorandums  of  the  reasons 
for  the  respective  positions  taken. 

The  Spaniards  refused  to  yield.  So  firmly  were  they  con- 
vinced of  the  correctness  of  their  position  that  they  proposed 
to  leave  the  questions  of  the  Cuban  debt  and  of  the  temporary 
American  occupation  of  Manila  to  arbitration.  This  move  had 
a  tactical  advantage  as  well  in  that  the  settlement  would  be 
postponed,  the  popular  desire  among  Americans  for  peace  would 
become  stronger;  and  Spain  could  not  possibly  be  the  greater 
loser  on  either  point.3  Despite  the  fact  that  the  Americans 
had  been  victorious  on  sea  and  land,  the  Spaniards  held  a  certain 
strategic  advantage.  If  negotiations  should  be  broken  off  the 

1  Treaty  of  Paris,  Protocol:  109. 
zlbid.,  128. 
slbid.,  195. 


336  LEADING  AMERICAN  TREATIES 

war  would  have  to  be  resumed.  Virtually  all  of  the  Spanish 
possessions  had  been  captured.  The  renewal  of  war  meant  the 
invasion  of  Spain.  Both  Wellington  and  Napoleon  had  found 
inherent  difficulties  in  such  a  venture;  and  they  had  fought  near 
their  bases.  What  might  such  a  campaign  mean  for  the  United 
States  with  a  base  3000  miles  away?  Such  a  campaign  involved 
the  invasion  of  Europe,  a  deviation  from  traditional  American 
policy;  it  had  possibilities  of  European  complications.  To  Amer- 
ican public  opinion  the  object  of  the  war  had  already  been  more 
than  realized;  consequently  popular  support  for  a  campaign  in 
Spain  might  not  be  forthcoming. 

The  Americans  pointed  out  that  arbitration  preceded  war,  to 
avoid  its  horrors;  it  did  not  come  after  the  appeal  to  trial  by 
battle.  The  Americans  presented  their  final  concessions. 
If  Spain  would  cede  the  Philippines  the  United  States  would 
pay  $20,030,000.  They  announced  that  it  was  "the  policy  of 
the  United  States  to  maintain  in  the  Philippines  an  open  door 
to  the  world's  commerce."  For  a  term  of  years  Spanish  ships 
and  merchandise  would  be  admitted  into  Philippine  ports  on  the 
same  terms  as  those  from  America.  They  proposed  also  a 
mutual  relinquishment  of  all  claims  for  indemnity,  national 
and  individual.  They  expressed  the  hope  that  they  might 
receive  from  the  Spanish  commissioners  on  or  before  November 
28,  1898,  "a  definite  and  final  acceptance  of  the  proposals." 
The  last  clause  gave  a  peremptory  character  to  the  proposal, 
although  hardly  that  of  an  ultimatum.1 

On  November  28  the  Spaniards  gave  their  reply  as  authorized 
by  their  government.  They  acknowledged  that  Spain  had 
exhausted  all  diplomatic  arguments  in  defense  of  her  rights  and 
even  of  equitable  compromise.  But  their  government  would  not 
assume  the  responsibility  of  reopening  the  war  with  all  its 
horrors.  Spain  accepted,  therefore,  the  terms  of  the  United 
States.2 

At  the  session  on  November  30,  the  seventeenth  in  order,  the 
Americans  presented  a  draft  of  the  treaty.  Various  minor  points 

1  Treaty  of  Paris,  Protocol:  198. 
'Ibid.,    211. 


THE  TREATY  OF  PARIS,  1898  337 

remained  in  dispute.  The  Spaniards  asked  for  commercial 
concessions  in  Cuba  and  Porto  Rico  similar  to  those  obtained  in 
the  Philippines.  The  Americans  tempered  their  refusal  with  the 
suggestion  that  such  an  arrangement  might  be  made  in  a  sepa- 
rate commercial  treaty.  The  Spaniards  asked  that  each  nation 
should  return  at  its  own  expense  the  prisoners  it  had  taken.  This 
was  a  one-sided  proposal,  for  Spain  had  taken  few  prisoners  to 
the  peninsula  from  Cuba  or  the  Philippines,  and  she  held  no 
Americans;  while  the  United  States  had  taken  more  than  35,000 
prisoners.  The  Americans  accepted  the  proposal  with  the  condi- 
tion that  the  prisoners  should  be  returned  to  the  nearest  port  of 
their  home  country.  The  Spaniards  asked  for  the  return  of  war 
material  in  Cuba  and  Porto  Rico.  The  Americans  replied  that 
this  subject  fell  outside  their  instructions,  there  being  special 
military  commissions  for  the  purpose.  The  same  reply  was  given 
to  a  request  for  the  war  material  in  the  Philippines.  The  Span- 
iards maintained  that  the  cession  of  the  archipelago  included  only 
fixed  material  and  that  portable  material  should  be  either  pur- 
chased or  returned  to  Spain.  The  Americans  yielded  and  defined 
what  portable  material  should  include.1 

At  the  conference  on  December  6  the  Americans  expressed  a 
desire  to  take  up  the  revival  of  former  treaties.  The  Spaniards 
replied  that  such  an  article  might  be  relevant  but  it  was  usually 
the  last  one  in  a  treaty  of  peace.  The  commissioners  took  up 
the  subject  of  nationality,  contracts  for  public  works,  contracts 
for  mail  and  cable  service,  and  matters  pertaining  to  religion, 
the  "Maine,"  pension  for  the  Duke  of  Veragua,  consuls,  juris- 
diction of  courts,  copyrights  and  patents,  Strong  Island  in  the 
Carolines,  and  claims. 

Three  of  these  subjects  were  omitted  from  the  treaty.  The 
Duke  of  Veragua  was  held  to  be  a  descendant  of  Christopher 
Columbus.  Spain  had  paid  him  a  pension  of  $7,400,  chargeable 
partly  on  the  treasury  of  Porto  Rico  and  partly  on  that  of  Man- 
ila. The  Americans  rejected  the  request  that  the  United  States 
should  pay  this  pension  in  the  future.2  The  Spaniards  brought 

1  Treaty  of  Paris,  Protocol:  227. 

2  Ibid.,    244. 


338  LEADING  AMERICAN  TREATIES 

up  the  subject  of  the  "Maine."  They  pleaded  earnestly  that 
the  investigation  of  the  disaster  be  turned  over  to  an  interna- 
tional commission  of  experts  to  determine  whether  Spain  had 
been  responsible  even  were  it  through  negligence.  And  they  re- 
ferred to  President  McKinley's  characterization  of  the  disaster 
as  "suspicious"  in  his  annual  message  of  December  5,  1898. 
They  wanted  a  decision  which  would  quiet  the  passions  of  the 
two  peoples  on  the  point.  The  Americans  declined  to  enter  upon 
a  discussion  "in  obedience  to  well  established  precedents  and 
practice  in  the  history  of  their  country."  *  The  Americans 
offered  one  million  dollars  for  Strong  Island  in  the  Carolines. 
The  Spaniards  replied  that  the  subject  fell  outside  the  scope  of 
the  treaty  and  that  Spain  had  no  intention  of  disposing  of  one  of 
the  Carolines.2  As  a  matter  of  fact  Spain  sold  the  entire  group 
two  months  later  to  Germany  for  about  five  million  dollars. 
Nothing  was  said  about  the  revival  of  treaties  existing  before  the 
war.  And  by  the  Commercial  Treaty  of  1902,  Article  XXIX,  all 
treaties  prior  to  the  Treaty  of  Paris  were  expressly  annulled 
except  the  Treaty  of  1834  for  the  settlement  of  claims  between 
the  two  countries.3 

By  Article  I  of  the  treaty,  Spain  relinquished  all  claims  of 
sovereignty  over  Cuba.  The  United  States  assumed  all  obliga- 
tions for  the  protection  of  life  and  property  during  its  military 
occupation  of  the  island  so  far  as  could  be  proved  under  interna- 
tional law. 

By  Article  II  Spain  ceded  Porto  Rico  and  her  other  islands 
in  the  West  Indies  and  the  island  of  Guam  in  the  Ladrones  or 
Marianas  to  the  United  States. 

By  Article  III  Spain  ceded  the  Philippine  archipelago  for 
which  the  United  States  agreed  to  pay  $20,000,000.  The  bound- 
aries by  degrees  latitude  and  longitude  were  drawn.  It  so  hap- 
pened that  the  Sulu  Islands  lay  outside  these  lines.  These  had 
been  under  the  recognized  jurisdiction  of  Spain  and  the  United 
States  took  possession  of  them.  Spain  protested ;  but  on  Novem- 

1  Treaty   of  Paris,    Protocol:  262. 

*Ibid.,  252. 

1  Malloy,  Treaties,  II.:  1710. 


THE  TREATY  OF  PARIS,  1898  339 

ber  7,  1900,  Spain  agreed  to  accept  as  compensation  for  her 
claim  $100,000. x 

By  Article  IV  the  United  States  agreed  to  admit  for  a  term 
of  ten  years  from  the  exchange  of  ratifications  Spanish  ships  and 
merchandise.  Nothing  was  said  about  the  policy  of  the  "  open 
door"  in  the  text  of  the  treaty,  but  the  policy  was  expressly 
mentioned  in  the  protocol.2  The  concession  to  Spanish  ships  and 
merchandise  was  observed.  But  the  open  door  in  the  Philip- 
pines constituted  a  reversal  of  American  commercial  policy, 
which  had  as  its  fundamental  concept  that  the  domestic  market 
should  be  hedged  in  by  protective  tariffs  and  exclusive  naviga- 
tion laws.  Could  it  be  that  McKinley  and  John  Hay  conceived 
of  the  Philippines  as  a  part  of  the  Far  East  and  apprehended 
that  the  United  States  had  more  to  lose  than  to  gain  by  mer- 
cantile barriers?  Whatever  may  have  been  their  view  the  United 
States  closed  the  open  door  by  a  statute,  approved  April  30, 1906, 
which  was  to  become  effective  April  n,  1909.  That  statute 
restricted  all  trade  between  the  United  States  and  the  islands  to 
American  vessels.3  And  by  the  Philippine  tariff  act  of  1909 
Congress  exempted  from  import  and  export  duties  American  and 
Philippine  products  passing  between  the  two  regions  by  direct 
shipment.4 

By  Article  V  the  United  States  agreed  to  send  back  to  Spain 
the  soldiers  taken  as  prisoners  of  war  during  the  capture  of 
Manila  and  to  restore  the  arms  to  the  soldiers.  Spam  agreed  to 
evacuate  the  Philippines  and  Guam  at  a  time  to  be  later  deter- 
mined. Guns  of  all  kinds  including  field  artillery,  military  sup- 
plies, and  uncaptured  war  vessels  were  to  remain  the  property  of 
Spain.  Heavy  ordnance  and  coast  defenses  should  remain  in 
place  for  six  months,  and  the  United  States  might  buy  them  if  a 
satisfactory  agreement  could  be  reached. 

Article  VI  provided  for  a  reciprocal  release  of  prisoners  of  war 
and  transportation  of  them  at  the  captor's  expense  to  their  re- 
spective home  ports. 

1  Malloy,  Treaties,  II. :  1696. 
2 Treaty  of  Paris,  Protocol:  218. 
3  Statutes  at  Large,  34,  pt.  i.:  154. 
4 Ibid.,  36,  pt.  i:  173,  174. 


340  LEADING  AMERICAN  TREATIES 

Article  VII  provided  for  the  mutual  relinquishment  of  all 
claims  for  indemnity,  national  and  individual.  The  following 
clause  was  inserted  by  the  American  commissioners,  "The 
United  States  will  adjudicate  and  settle  the  claims  of  its  citizens 
against  Spain  relinquished  hi  this  article."  This  might  be 
considered  domestic  legislation,  for  it  concerned  the  United 
States  and  its  citizens  alone.  Nevertheless,  it  was  wise  to 
insert  this  provision  hi  the  supreme  law  of  the  land,  for  it 
gave  the  claimants  something  to  which  they  could  point  defi- 
nitely in  urging  Congress  to  act.  A  similar  provision  in  the  Con- 
vention of  1800  with  France  would  have  made  more  smooth  the 
path  of  the  spoliation  claims.  As  it  was  Congress  took  two 
years  hi  which  to  act.  The  statute  of  March  2,  1901,  authorized 
a  treaty  claims  commission  of  five  members.  This  commission 
drew  up  a  set  of  eleven  stringent  rules  and  hi  accordance  there- 
with claims  of  American  citizens  to  the  extent  of  $60,000,000 
were  adjudicated.1 

Article  VIII  provided  that  in  the  ceded  territories  Spain 
should  relinquish  her  title  to  all  immovable  property  in  the 
public  domain,  such  as  buildings,  wharves,  public  highways. 
But  this  relinquishment  could  hi  no  way  affect  the  property 
rights  of  provinces,  municipalities,  ecclesiastical  or  civil  bodies, 
or  of  private  individuals. 

Three  interesting  cases  arose  hi  the  Philippines  under  this 
article.  During  the  revolutions  of  1896  and  1898,  the  Domini- 
cans, Augustinians,  Recolletos,  and  Franciscans,  commonly 
called  the  friars,  had  been  driven  from  their  parishes.  Some  had 
been  killed,  others  had  gone  to  China  or  returned  to  Spain,  and 
a  remnant  had  taken  refuge  in  Manila.  Out  of  1,124  in  1896 
only  472  remained  when  the  Americans  took  possession.  These 
friars  had  Christianized  the  Filipinos.  And  Spain  found  it 
expedient  to  place  a  large  share  of  the  civil  administration  in 
their  hands.  No  recruits  were  taken  from  the  natives.  The 
friars  were  exempt,  except  for  heinous  crimes,  from  trial  hi  the 
civil  courts.  They  had  immense  sums  of  money  to  lend.  They 
owned  one-third  of  the  realty  within  Manila  and  over  400,000 
1  Sen.  Doc.  25,  25th  Cong.,  2nd  Session. 


THE  TREATY  OF  PARIS,   1898  341 

acres  of  the  most  fertile  agricultural  land  in  the  islands.  Their 
tenants  had  to  pay  exactions  of  rents  and  dues  more  onerous 
than  those  of  feudal  days.  Taft  saw,  in  his  investigations, 
that  it  was  these  exactions  that  made  the  friars  hated,  that  the 
opposition  to  them  was  political  and  not  religious.  With  the 
authority  of  Congress  and  the  aid  of  the  Papacy  he  was  able  to 
purchase  the  lands  and  to  provide  for  their  sale  on  long  term  and 
easy  payments.1  This  action  removed  a  cause  of  friction  and 
enabled  the  friars  to  resume  more  effectively  their  functions  as 
spiritual  guides  of  the  people. 

The  Manila  Railway  Company  was  a  British  corporation 
which  had  constructed  a  line  to  Dagupan.  Spain  had  guar- 
anteed in  the  franchise  a  return  of  8  percent,  on  the  investment 
and  she  made  the  payments  regularly.  After  the  Treaty  of  Paris 
this  company  presented  its  claim  for  the  guaranteed  amount  to 
the  United  States  on  the  ground  that  the  obligation  had  been 
transferred  with  the  sovereignty.  The  matter  was  referred  to  the 
Attorney  General  who  ruled  that  the  United  States  would  ob- 
serve the  franchise  rights  of  the  company,  but  the  contract  made 
by  Spain  was  partly  for  her  own  benefit  and  as  such  could  not 
become  obligatory  upon  the  new  sovereignty.2  The  company 
received  afterwards  an  equitable  compensation  through  congres- 
sional action. 

The  Eastern  Extension  Australasia  and  China  Telegraph  Com- 
pany was  another  British  corporation  which  owned  the  cable 
between  Manila  and  Hong  Kong.  Spain  had  agreed  to  guarantee 
a  fixed  rate  in  return  for  exclusive  rights  to  be  accorded  her. 
Early  in  his  occupation  of  Manila  Bay  Dewey  had  ordered  the 
cable  cut.  The  British  ambassador,  Sir  Julian  Pauncefote, 
brought  a  representation  in  behalf  of  the  company  for  the  sub- 
sidy and  for  the  cost  of  splicing  the  cable.  The  matter  was 
referred  to  the  Attorney  General  who  could  give  no  opinion 
because  he  did  not  have  the  terms  of  the  contract.  Later, 
Charles  E.  Magoon,  the  law  officer  for  the  bureau  of  insular 
affairs,  found  that  this  company  was  making  more  than  the 

1  Reports  of  the  Philippine  Commission,  1900-1903:  39,  466. 

2  23  Op.  181. 


342  LEADING  AMERICA^  TREATIES 

percentage  stipulated  and  that  if  the  United  States  were  substi- 
tuted for  Spain  in  the  contract  the  company  would  by  its  terms 
have  to  make  a  considerable  refund.  He  advised  that  the 
question  of  subsidy  be  treated  as  though  the  company  had  made 
an  original  application  for  the  construction  of  a  quasi  public 
improvement.1 

In  Cuba  at  least  two  cases  arose  under  Article  VIII.  Another 
British  corporation,  the  Cuba  Submarine  Telegraph  Company, 
presented  a  request  through  the  British  government  that  the 
United  States  protect  it  and  assume  the  obligations  of  Spain. 
The  Attorney  General  refused  to  allow  the  claim  on  the  ground 
that  the  United  States  was  not  the  successor  of  Spain  in  Cuba, 
but  was  merely  arranging  for  the  succession  of  the  government 
of  Cuba.2  So  strictly  did  the  United  States  construe  its  tempo- 
rary occupation  that  it  refused  to  grant  any  title  to  property,  any 
franchises  or  concessions  of  any  kind.3 

The  Countess  of  Buena  Vista  and  Don  Gustava  Duplessis 
brought  a  joint  claim  for  the  emoluments  of  the  office  of  sheriff  of 
Havana.  This  office  had  been  hereditary  in  the  family  of  the 
countess  since  1728,  when  it  had  been  bought  at  public  auction. 
In  order  to  raise  money  to  satisfy  a  debt  she  sold  in  1895  a  one 
half  interest  in  the  office  to  Duplessis.  On  August  8,  1900, 
the  claimants  petitioned  the  Secretary  of  War  for  relief,  pleading 
that  they  had  been  deprived  of  their  property  in  contravention 
of  Article  VIII  of  the  Treaty  of  Paris.  Magoon  wrote  the  opinion 
which  Secretary  Root  approved  and  which  the  Supreme  Court 
sustained.4  The  claim  for  indemnity  rested  upon  the  terms  of 
the  contract  with  Spain;  and  the  contract  was  a  personal  con- 
tract of  the  Spanish  state.  The  obligations  did  not  pass  with  the 
transfer  of  sovereignty  and  the  United  States  refused  to  assume 
them.  Whether  or  not  the  municipality  of  Havana  became  liable 
was  a  subject  which  the  Cuban  courts  might  properly  determine.6 

1  Magoon's  Reports,  529;  Moore,  Digest  of  Int.  Law,  I:  408. 
1  22  Op.  384. 

'  See  Foraker  Resolution  in  Army  Appropriation  Act  of  March  3,  1899. 
4  209  U.  S.  45.    For  an  opposing  view  see  Percy  BordweU's  article  in 
Am.  Journal  of  Int.  Law,  II.:  119. 
6  Magoon's  Reports,  194. 


THE  TREATY  OF  PARIS,  1898  343 

In  Porto  Rico  Sefior  Guillermo  Alvarez  y  Sanches  presented 
a  claim  for  $30,000  for  having  been  deprived  of  his  office  of 
notary,  which  he  had  purchased  in  1896.  General  Brooke  had 
offered  to  renew  the  appointment  if  Guillermo  would  take  the 
oath  of  allegiance.  This  he  refused  to  do,  preferring  to  base  his 
claim  on  a  property  right.  Magoon  decided  against  him  on  the 
ground  that  the  office  had  been  cancelled  as  a  military  measure 
and  therefore  came  under  the  mutual  relinquishment  of  damages 
in  Article  VII.1  This  decision  was  upheld  by  the  Court  of 
Claims.2 

By  Article  IX  Spanish  subjects  who  had  been  born  in  the 
peninsula  were  given  one  year  in  which  to  make  a  declaration 
that  they  reserved  their  Spanish  allegiance;  otherwise  they 
would  be  held  to  have  renounced  it  and  to  have  adopted  the 
nationality  of  the  territory.  The  rights  of  Spanish  subjects 
would  be  the  same  as  those  of  other  foreigners.  The  civil  rights 
and  political  status  of  the  natives  should  be  determined  by  Con- 
gress. 

Article  X  provided  for  the  free  exercise  of  religion  in  the  ceded 
territories. 

Under  Article  XI  Spanish  subjects  residing  in  the  ceded 
territories  should  be  subject  to  the  jurisdiction  of  the  local 
courts  and  have  the  right  to  appear  before  those  courts. 

Article  XII  provided  that  in  judicial  proceedings  pending  at 
the  time  of  the  exchange  of  ratifications  in  the  ceded  territories 
the  judgment  should  in  civil  and  criminal  cases  be  executed  by 
the  competent  authority.  There  should  be  no  appeal  if  it  were 
not  permitted  by  Spanish  law.  Criminal  actions  against  citizens 
in  the  ceded  territories  pending  in  the  supreme  court  of  Spain 
should  be  disposed  of  by  the  court  and  the  judgment  should  be 
executed  by  the  competent  authority  of  the  place  in  which  the 
case  arose. 

Under  Article  XIII  the  rights  of  property  secured  by  copy- 
rights and  patents  by  Spaniards  in  the  ceded  territories  should 
continue  to  be  respected.  Spanish  scientific,  literary,  and  artis- 

1  Magoon's  Reports,  454. 

2  42  Court  of  Claims,  458. 


344  LEADING  AMERICAN  TREATIES 

tic  works  should  be  admitted  free  of  duty  to  the  ceded  ter- 
ritories for  ten  years,  unless  they  were  subversive  of  public  order. 

Article  XIV  authorized  Spain  to  establish  consular  officers 
in  the  ceded  territories. 

By  Article  XV  each  party  agreed  to  accord  to  the  merchant 
vessels  of  the  other  party  the  same  treatment  that  it  accorded 
its  own  merchant  vessels,  except  those  engaged  in  the  coast-wise 
trade. 

The  United  States  agreed  by  Article  XVI  to  recommend  to  the 
future  government  of  Cuba  to  accept  for  itself  the  obligations 
assumed  by  the  United  States  for  Cuba  in  the  treaty. 

The  final  article  provided  that  the  ratifications  should  be 
exchanged  at  Washington  within  six  months.1 

The  treaty  was  signed  at  Paris  on  December  10, 1898.  The 
President  ratified  the  treaty  on  the  same  day.  The  ratifications 
were  exchanged  on  April  n,  1899;  and  the  treaty  was  proclaimed 
on  the  same  day. 

A  voluminous  debate  took  place  in  the  Senate  and  in  the  House 
on  the  question  of  imperialism,  on  whether  the  Philippines  should 
be  incorporated  in  the  American  domain  or  set  free  as  had  been 
provided  in  the  Platt  amendment  for  Cuba.  A  faction  in  the 
Philippines  aided  materially  in  settling  this  question  by  carrying 
on  an  insurrection.  On  March  2,  1899,  Congress  voted  the 
$20,000,000  to  be  paid  to  Spain;  and  on  May  i  the  payment  was 
made.  On  June  3  the  Duke  de  Arcos  was  received  in  Washington 
as  the  minister  of  Spain. 

The  United  States  took  formal  possession  of  Cuba  on  January  i , 
1899.  The  Cuban  army  was  disbanded  during  the  following 
months,  the  soldiers  receiving  $2,600,000  from  the  United  States. 
Delegates  to  a  constitutional  convention  were  elected  on  Septem- 
ber 15,  1900.  Except  for  the  definition  of  the  relations  with  the 
United  States  the  convention  completed  its  labors  and  adopted 
the  constitution  on  February  21, 1901.  The  Platt  amendment  to 
the  army  appropriation  bill  became  law  on  March  2,  1901. 
General  Wood  communicated  the  terms  of  the  amendment  to  the 
Cuban  convention.  The  members  felt  that  the  terms  impaired 
1  Malloy,  Treaties,  etc.,  II.:  1690. 


THE  TREATY  OF  PARIS,   1898  345 

the  sovereignty  and  independence  of  Cuba.  The  convention 
authorized  a  committee  to  confer  with  President  McKinley. 
He  explained  that  he  could  not  change  a  law.  The  committee 
returned,  made  its  report,  and  the  convention  adopted  the 
Platt  amendment  with  reservations.  These  proved  to  be  un- 
satisfactory to  the  United  States.  So  on  June  12,  1901,  the  con- 
vention ratified  the  Platt  amendment  verbatim  as  a  part  of  the 
constitution  by  a  vote  of  sixteen  to  eleven. 

This  amendment  contained  eight  articles,  i.  Cuba  would 
never  make  a  treaty  with  any  foreign  power  that  might  impair 
her  independence.  2.  No  debt  would  be  contracted  that  could 
not  be  met  by  the  ordinary  revenues  of  the  island.  3.  The 
United  States  might  intervene  for  the  preservation  of  Cuban 
independence  and  the  maintenance  of  a  government  adequate 
for  the  protection  of  life,  liberty,  and  property,  and  for  discharg- 
ing its  obligations  under  the  Treaty  of  Paris.  It  was  under  this 
article  that  the  United  States  intervened  in  September,  1906. 
4.  All  acts  of  the  United  States  in  Cuba  during  the  military 
occupation  were  validated.  5.  Cuba  would  carry  out  the  plans 
of  sanitation  for  the  cities  of  the  island.  6.  The  Isles  of  Pines 
should  be  left  to  future  adjustment  by  treaty.  Such  a  treaty  was 
negotiated  in  1902,  giving  the  Isle  of  Pines  to  Cuba;  but  the 
American  Senate  refused  to  ratify  it.  The  Supreme  Court 
decided  in  Pearey  v.  Stranahan,  April,  1907,  that  this  island  was 
not  American  territory  and  that  the  customs  duties  imposed  by 
Cuba  must  be  paid.  7.  To  enable  the  United  States  to  maintain 
the  independence  of  Cuba,  to  protect  the  Cuban  people,  and  to 
provide  for  its  own  defense  Cuba  would  sell  or  lease  to  the  United 
States  land  necessary  for  coaling  and  naval  stations  at  points  to 
be  agreed  upon.  Two  stations  were  agreed  upon,  Guantanamo 
and  Bahia  Honda;  but  the  latter  was  receded,  1911,  in 
exchange  for  an  enlargement  of  Guantanamo.  8.  Cuba  would 
embody  the  foregoing  provisions  in  a  treaty  with  the  United 
States.  Cuba  did  so  in  1903. 1  On  May  20, 1902,  the  constitution 
was  promulgated  and  the  Americans  transferred  the  government 
of  the  island  to  the  Cuban  authorities. 

1  Malloy,  Treaties,  I.:  362. 


346  LEADING  AMERICAN  TREATIES 

BIBLIOGRAPHY 

BENTON,  E.  J. — International  Law  and  Diplomacy  of  the  Spanish  American 

War.     Baltimore,  1008. 
CHADWICK,  F.  E.—The  Relations  of  the  United  Slates  and  Spain,  Diplomacy. 

New  York,  1909. 

FOREIGN  RELATIONS.— 1898.    Washington,  1901. 
LATANE,  JOHN  HOLLADAY. — America  as  a  World  Power,  1897-1907.    New 

York,  1907. 
MOORE,  J.  B. — The  Treaty  of  Peace,  a  Chapter  in  the  American  Spanish 

War.    Published  by  Charles  C.  Haskell  &  Son.    Norwich,  Conn.,  1809. 
REID,  WHITELAW. — Problems  of  Expansion.     New  York,  1900. 
Spanish  Diplomatic  Correspondence  and  Documents,  1896-1900.    Translation. 

Washington,  1905. 
TREATY  OF  PARIS,  1898.    President's  Message  and  Papers,    Washington, 

1899. 


CHAPTER  XV 
THE  PANAMA  CANAL  TREATIES 

"Appearances  to  the  mind  are  of  four  kinds.  Things  either  are  what 
they  appear  to  be;  or  they  neither  are  nor  appear  to  be;  or  they  are  and  do 
not  appear  to  be;  or  they  are  not,  and  yet  appear  to  be.  Rightly  to  aim  in 
all  these  cases  is  the  wise  man's  task." — EPICTETUS. 

Since  the  time  of  Balboa  the  need  for  a  canal  across  the 
isthmus  of  Panama  has  been  apparent.  Cortez  emphasized  this 
necessity  in  his  letters  to  Charles  V.  That  monarch  revealed 
considerable  interest  and  ordered  an  exploration  of  the  Chagres 
River  at  Colon.  The  opening  of  the  silver  mines  of  Peru  made 
the  building  of  a  road  between  Panama  on  the  Pacific  and  Nom- 
bre  de  Dios  on  the  Atlantic  imperative.  This  trade  route  became 
the  richest  in  the  world.  Gold,  silver,  pearls,  and  ornaments 
from  the  region  of  the  Incas;  wool,  mdigo,  dyewoods,  mahogany, 
cocoa,  and  tobacco  from  various  sections  of  Spanish-America 
crossed  this  route.  The  law  required  the  products  of  present 
Argentina  to  be  carried  westward  through  the  mountain  passes 
to  the  Pacific,  thence  north  to  Panama,  across  the  isthmus  where 
they  were  loaded  on  vessels  for  Cadiz.  Even  cargoes  of  Philip- 
pine products  reached  Spain  by  way  of  Panama. 

Gradually  the  King  of  Spain  granted  numerous  exclusive  fran- 
chises, with  the  result  that  all  along  the  route  the  products  paid 
toll  to  those  who  held  exclusive  privileges  from  the  crown. 
In  the  reign  of  Philip  II  some  persons  asked  permission  to  explore 
the  river  Atrato,  which  might,  they  thought,  connect  the  Gulf  of 
Darien  with  the  Pacific.  So  encrusted  with  vested  privileges 
had  the  Panama  route  become  that  Philip  II  forbade  under  pen- 
alty of  death  all  attempts  to  go  up  that  river. 

In  1550  the  Portuguese  navigator  Antonio  Galvao  published 
a  book  demonstrating  the  feasibility  of  cutting  a  canal  at 
either  Tehuantepac,  Nicaragua,  Panama,  or  Darien.  In  the 
following  year  the  Spanish  historian  F.  L.  de  Gomara  made  a 

347 


348  LEADING  AMERICAN  TREATIES 

futile  appeal  for  action  to  Philip  II.  In  1695  William  Patterson 
organized  the  Darien  Company  which  ended  in  disaster  three 
years  later.  By  1771  the  Spanish  government  had  changed  its 
policy  and  ordered  surveys,  but  internal  disturbances  prevented 
action.  Alexander  von  Humboldt  examined  the  isthmus  in  1808 
and  pronounced  in  favor  of  the  Nicaragua  route.  The  successful 
revolt  of  the  Spanish  American  colonies  and  the  consequent 
opening  of  their  ports  to  the  trade  of  the  world  increased  the 
interest  hi  a  canal.  A  Dutch  corporation  under  the  patronage  of 
the  King  of  the  Netherlands  ob tamed  a  concession,  1830,  to 
build  a  canal  in  Nicaragua.  But  a  strongly  worded  protest  on  the 
basis  of  the  Monroe  Doctrine  from  President  Jackson  and  the 
revolution  in  Belgium  prevented  the  execution  of  the  plan. 

An  international  congress  met  in  Panama,  1826.  The  Amer- 
ican delegate  arrived  too  late;  but  he  carried  significant  instruc- 
tions from  Henry  Clay,  the  Secretary  of  State.  Should  the  canal 
be  cut,  "the  benefits  of  it  should  not,"  wrote  Clay,  "be  exclu- 
sively appropriated  to  any  one  nation,  but  should  be  extended  to 
all  parts  of  the  globe  upon  the  payment  of  just  compensation 
or  reasonable  tolls.1  DeWitt  Clinton  played  with  the  idea  of  a 
canal  but  accomplished  nothing.  The  United  States  Senate 
passed  a  resolution,  1835,  in  favor  of  constructing  a  canal  at 
Nicaragua.  President  Jackson  sent  Charles  Biddle  to  negotiate 
a  treaty.  But  Biddle  decided  in  favor  of  the  Panama  route  and 
negotiated  accordingly,  with  the  result  that  his  work  was  re- 
pudiated. 

Then  followed  the  colonization  of  Texas,  Oregon,  and  Cali- 
fornia. The  settlement  of  the  Oregon  boundary  in  1846  gave  the 
United  States  a  Pacific  coast  line.  The  annexation  of  Texas, 
the  war  with  Mexico,  the  acquisition  of  California,  and  the 
discovery  of  gold  made  a  Panama  route  necessary.  In  1848 
Aspinwall,  Stephens,  and  others  obtained  from  the  government 
of  New  Granada  the  right  of  way  for  a  railroad  at  Panama. 
This  famous  road  was  opened  to  traffic  in  1855.  In  August,  1849, 
Cornelius  Vanderbilt,  Joseph  L.  White,  and  others  organized 
The  American  Atlantic  and  Pacific  Ship  Canal  Company  and 
1  Moore,  Digest  of  International  Law,  HI. :  2. 


THE  PANAMA   CANAL  TREATIES  349 

obtained  a  concession  from  Nicaragua.  The  company  sent 
Colonel  Childs  to  make  a  survey,  which  he  performed  with 
accuracy. 

It  is  from  this  period  that  the  diplomatic  negotiations  begin. 
The  negotiations  divide  themselves  into  three  parts.  Those 
with  Great  Britain  have  the  Clayton-Bulwer  and  the  Hay- 
Pauncefote  Treaties  as  centers;  those  with  Colombia  have  the 
Treaty  of  1846  and  the  proposed  Hay-Herran  Treaty;  and  those 
with  Panama  have  the  Hay-Bunau-Varilla  Treaty  as  a  center. 
These  centers  will  be  described  in  their  proper  order. 

Why  did  the  United  States  enter  into  the  Clayton-Bulwer 
Treaty?  Because  by  1849  Great  Britain  controlled  the  entire 
Atlantic  seaboard  of  Central  America  and  Tigre  Island  in  the 
Gulf  of  Fonseca  on  the  Pacific  side.  The  acquisition  of  this 
control  had  been  gradual.  In  1838  the  Central  American 
Republic  had  broken  up  into  four  states.  A  London  bank  had 
loaned  considerable  money  on  the  defunct  republic's  bonds.  The 
British  consul  general,  Frederick  Chatfield,  apportioned  ar- 
bitrarily the  debt  and  proceeded  to  enforce  payment.  He 
allowed  Salvador  twenty-four  hours.  Salvador  rejected  the 
terms;  and  Chatfield  ordered  a  blockade  of  her  coast.  Neither 
could  Honduras  comply;  so  he  ordered  the  occupation  of  the 
Atlantic  ports  of  Omoa  and  Truxillo  on  Honduras  Bay  and  on 
the  Pacific  side  he  ordered  the  seizure  of  Tigre  Island  which  com- 
manded the  Gulf  of  Fonseca  and  the  western  terminus  of  the 
proposed  canal.1  In  Costa  Rica  the  party  in  power  agreed  that 
the  state  should  become  a  British  protectorate.  Whereupon, 
Costa  Rica  revived  an  obsolete  claim  to  the  part  of  Nicaragua 
lying  south  of  the  San  Juan  River.  At  the  same  time  Chatfield 
ordered  the  seizure  of  San  Juan  or  Greytown  in  Nicaragua. 
Chatfield  had  previously  espoused  the  cause  of  the  King  of  the 
Mosquito  Indians  and  agreed  that  he  should  be  protected  in  his 
territory  from  the  Rome  River  on  the  north  to  the  San  Juan 
River  on  the  south  with  Bluefields  as  the  British  commercial 
center.  In  Belize,  or  British  Honduras,  the  English  wood- 
cutters had  received  protection  from  their  government  for  more 
1  Sen.  Ex.  Doc.,  43,  32  Cong.,  2nd  Sess.,  5,  46. 


350  LEADING  AMERICAN  TREATIES 

than  a  century,  although  a  colonial  government  was  not  estab- 
lished there  until  1862. 

President  Polk  appointed,  1848,  the  first  American  diplomatic 
agent  to  the  Central  American  states,  Elijah  Hise.  He  received 
instructions  to  collect  information  on  the  British  encroach- 
ments, to  refrain  from  acquiescing  in  their  pretensions,  and  to 
negotiate  treaties  of  amity  and  commerce  with  those  states  that 
could  be  regarded  as  independent.1  He  soon  became  convinced 
that  the  British  had  in  mind  obtaining  control  over  all  the  pos- 
sible canal  routes.  Mindful  that  Trist's  instructions  to  obtain 
a  canal  route  had  been  frustrated  in  the  Treaty  of  Guadalupe 
Hidalgo,  Hise  proceeded  to  negotiate  for  a  canal  concession 
across  Nicaragua  and  included  a  guarantee  of  Nicaraguan  inde- 
pendence.2 But  President  Taylor's  administration  represented 
a  reaction  to  the  aggressive  expansionist  policies  of  Polk.  E.  G. 
Squier  received  the  appointment  to  replace  Hise;  and  the  Hise 
treaty  was  never  submitted  to  the  Senate. 

Secretary  Clayton  instructed  Squier  to  negotiate  a  new  treaty 
with  Nicaragua  which  should  assure  equal  right  of  transit  for  the 
commerce  of  all  nations  through  the  canal.  He  was  "not  to 
involve  the  country  in  any  entangling  alliances,  or  any  unneces- 
sary controversy. "  The  United  States  could  not  permit  another 
nation  to  possess  a  monopoly  of  such  a  canal.  However,  Nica- 
ragua should  be  left  free  to  enter  into  treaty  relations  with  other 
powers  and  foreign  capital  might  be  used  in  financing  the  pro- 
ject. The  instructions  mentioned  that  an  American  company 
had  been  formed  to  dig  the  canal.  Squier  could  render  it  friendly 
assistance  but  he  was  not  to  implicate  the  government  in  any 
scheme  of  speculation.3 

Squier  obtained  for  Vanderbilt's  company,  August,  1849,  the 
right  to  construct  a  canal  from  any  point  on  the  Gulf  coast  to 
any  point  on  the  Pacific  and  the  exclusive  right  to  navigate  by 
steam  all  Nicaraguan  lakes  and  rivers.4  Squier  inserted  in  the 
treaty  that  the  United  States  would  guarantee  the  neutrality  of 

1  House  Ex  Doc.  75,  31  Cong.,  i  Sess.,  92. 
'Ibid.,  no. 
*Ibid.,  117. 
«Ibid.,  173. 


THE  PANAMA  CANAL  TREATIES  351 

the  canal  and  the  independence  of  Nicaragua.1  At  every  step 
Squier  met  British  intrigue  and  thought  he  met  more  than  there 
actually  was. 

Squier  hurried  into  Honduras  and  signed  a  treaty,  September 
28,  1849.  Honduras  agreed  to  cede  Tigre  Island  to  the  United 
States  for  eighteen  months  and  parts  of  the  shore  of  the  Gulf 
of  Fonseca  for  a  naval  station  and  fortifications.2  On  October 
1 6,  a  British  squadron  appeared  in  defense  of  Tigre  Island. 
Squier  notified  Chatfield  that  the  British  were  occupying  soil 
belonging  to  the  Unitd  States  and  requested  them  to  leave.3 
Chatfield  refused.  Squier  gave  Chatfield  six  days  in  which  to 
evacuate  Tigre  Island  or  the  United  States  would  consider  the 
occupation  an  unfriendly  and  violent  aggression.  The  British 
admiral  yielded  possession  hi  December,  1849;  and  the  island 
remained  under  the  American  flag  until  after  the  conclusion  of 
the  Clayton-Bulwer  Treaty  when  it  was  restored  to  Honduras.4 

Squier  had  brought  the  Whig  administration  into  a  dilemma. 
The  Whigs  could  not  support  the  Squier  treaties  nor  his  action 
toward  the  British,  for  they  did  not  want  war  with  Great  Britain. 
Neither  could  they  repudiate  Squier,  for  they  might  incur  the 
charge  of  yielding  unduly  to  British  bullying. 

Secretary  Clayton  approached  the  problem  open-mindedly. 
He  directed  the  American  minister  in  London,  George  Bancroft, 
to  ascertain  upon  what  grounds  Great  Britain  held  Grey  town 
and  maintained  the  Mosquito  Protectorate.  If  the  Foreign 
Office  revealed  a  desire  to  substantiate  the  British  claims  he 
should  point  out  the  inexpediency  of  British  control  over  the 
San  Juan  River  as  a  possible  interoceanic  highway.  He  could 
assure  the  Foreign  Office  that  the  United  States  did  not  aspire  to 
such  an  exclusive  control  of  a  canal  for  itself;  nor  would  it  approve 
of  such  a  claim  by  any  other  power.5  Lord  Palmers  ton  replied 
that  Great  Britain  had  no  intention  of  occupying  or  colonizing 
Central  America.  The  occupation  of  Greytown  was  temporary. 

1  British  Blue  Book  on  Central  American  Affairs,  1856,  18. 
1  Sen.  Ex.  Doc.  75,  31  Cong.,  2  Sess.,  10. 
'Ibid.,   16. 

4  Sen.  Ex.  Doc.  43,  31  Cong.,  2  Sess.,  76. 

5  House  Ex.  Doc.,  75,  31  Cong.,  i  Sess.,  230. 


352  LEADING  AMERICAN  TREATIES 

He  indicated  that  the  British  were  opposed  to  turning  the  port 
over  to  Nicaragua  and  he  would  mention  no  time  of  withdrawal.1 
Bancroft  was  soon  afterward  recalled. 

Clayton  instructed  the  newly  appointed  minister  to  France, 
W.  C.  Rives,  to  stop  at  London  and  interview  Palmerston  on  the 
canal  and  Mosquito  questions.  Rives  did  so.  Palmerston  held 
the  opinion  that  Nicaragua  had  gone  beyond  her  power  in  grant- 
ing a  concession  to  the  Vanderbilt  company.  He  denied  that 
Greytown  had  been  occupied  for  the  purpose  of  controlling 
a  canal.  And  he  expressed  a  willingness  on  the  part  of  Great 
Britain  to  join  the  United  States  hi  opening  a  canal  by  way  of  the 
San  Juan  River.  The  Mosquito  Indians  should  be  recognized 
as  an  independent  nation.2 

On  reading  Rives'  report  Clayton  concluded  to  enlist  the 
cooperation  of  Great  Britain  in  building  a  canal  open  on  equal 
terms  to  the  commerce  of  all  nations  and,  at  the  same  time,  to 
check  British  jurisdiction  in  Central  America  as  much  as  pos- 
sible. He  communicated  to  Crampton,  the  British  minister, 
his  readiness  to  negotiate  a  treaty.  Palmerston  appointed  as 
special  envoy  for  the  purpose  one  of  the  most  astute  and  ingratia- 
ting of  British  diplomats,  Sir  Henry  Lytton  Bulwer.  He  had 
achieved  fame  with  Lord  Byron  in  Greece.  He  had  served  with 
distinction  as  a  diplomat  in  Brussels,  Paris,  Constantinople,  and 
Madrid.  Palmerston  had  pronounced  his  Treaty  of  1838  with 
the  Porte  a  masterpiece. 

Bulwer  knew  how  to  arouse  the  latent  forces  in  Washington 
in  favor  of  his  mission.  The  popular  demand  for  a  treaty  on 
a  canal  grew  daily  more  urgent.  Clayton  held  confidential  the 
Hise  and  Squier  drafts  of  treaties;  but  he  did  not  know  how  soon 
members  of  Congress  might  obtain  information  of  them  through 
other  channels.  Indeed,  the  Senate  had  already  asked  the  Presi- 
dent for  the  correspondence  relating  to  the  proposed  canal. 
Rather  than  deliver  the  Hise  and  Squier  drafts  Clayton  became 
eager  to  submit  an  agreement  with  Great  Britain.  Aided 
by  these  two  pressures  upon  the  Secretary  of  State,  Bulwer  forced 

1  House  Ex.  Doc.,  75,  31  Cong.,  i  Seas.,  235. 
1  Sen.  Ex.  Doc.,  27,  23  Cong.,  2  Sess.,    20. 


THE  PANAMA  CANAL  TREATIES  353 

the  canal  question  to  the  front,  and  within  a  month  he  had  the 
project  of  a  treaty  agreed  upon.1  He  had  carefully  excluded 
all  points  that  might  pertain  to  British  influence  in  British 
Honduras  or  the  Mosquito  region. 

Clayton's  colleagues  in  the  cabinet  expressed  apprehension 
on  the  omission  of  the  Mosquito  question  and  a  fear  that  Great 
Britain  might  thereby  dominate  the  canal.  Moreover,  the  news 
of  the  seizure  of  Tigre  Island  by  the  British  reached  Congress 
and  inflamed  public  opinion  to  such  an  extent  that  delay  be- 
came necessary.  Bulwer  asked  Palmerston  to  disavow  the 
seizure  or  take  the  risk  of  having  Squier's  treaty  with  Honduras 
submitted  to  the  Senate,  which  might  mean  war.  Palmerston's 
qualified  disavowal  reached  Washington  only  by  March,  1850. 
By  that  time  Clayton  had  submitted  the  Squier  treaty  to  the 
Senate.  The  Democrats  clamored  for  the  correspondence.  Clay- 
ton held  back.  Meanwhile,  he  obtained  Bulwer's  consent  to  two 
important  changes  in  the  project.  First,  in  Article  I  both 
parties  agreed  to  refrain  from  using  any  alliance,  connection,  or 
influence  that  either  might  possess  with  any  state  or  government 
through  whose  territory  the  canal  might  pass  for  the  purpose  of 
obtaining  any  exclusive  rights  or  advantages.  Second,  in  Article 
VIII  the  treaty  was  made  to  apply  to  all  possible  isthmian 
routes.  Clayton  and  Bulwer  signed  the  treaty  on  April  19,  1850. 
The  Senate  advised  ratification  by  a  vote  of  forty-two  to  eleven 
on  May  22, 1850. 

The  treaty  had  nine  articles.  Both  parties  declared  that 
neither  would  obtain  for  itself  any  exclusive  control  over  the 
proposed  canal.  In  case  of  war  between  the  United  States  and 
Great  Britain  neither  would  resort  to  a  blockade  of  the  canal 
or  detain  or  capture  each  other's  vessels  in  the  canal.  Both 
parties  agreed  to  join  their  efforts  in  maintaining  the  neutrality 
and  protection  of  the  canal.  The  canal  should  be  open  to  the 
commerce  of  all  nations  on  equal  terms.  In  order  to  conserve 
time  they  determined  to  give  their  support  to  such  persons 
as  might  first  offer  to  commence  operations  with  adequate 
capital  and  the  consent  of  the  local  authorities.  The  treaty 
1  British  Blue  Book  on  Central  American  Affairs,  1856,  38. 


354  LEADING  AMERICAN  TREATIES 

applied  to  all  communications  whether  by  canal  or  railway 
across  any  part  of  the  isthmus.  Ratifications  were  to  be  ex- 
changed hi  Washington  within  six  months.1  They  were  ex- 
changed on  July  4,  1850.  On  the  next  day  President  Taylor 
proclaimed  the  treaty. 

Too  much  was  expected  of  this  agreement.  The  turbulent 
conditions  hi  Central  America  convinced  the  Foreign  Office  that 
Great  Britain  should  continue  in  possession  of  Greytown,  hi  the 
protection  of  the  Mosquito  Indians,  and  hi  the  support  of  Costa 
Rica.  Webster  succeeded  Clayton  as  Secretary  of  State  and 
asked  that  Great  Britain  should  turn  Greytown  over  to  Nicar- 
agua. An  American  vessel,  the  "Prometheus,"  refused  to  pay 
the  port  dues  at  Greytown.  The  British  fired  upon  her  and 
compelled  her  to  do  so.  A  large  number  of  American  adventur- 
ers collected  in  that  port  for  transportation  across  the  isthmus  on 
their  way  to  the  California  gold  fields.  These  rebelled  against  all 
restraint,  especially  British  rule.  Accordingly,  Great  Britain 
and  the  United  States  looked  with  suspicion  at  the  attitude  and 
acts  of  each  other;  and  both  used  the  treaty  as  a  basis  for  accusing 
the  other  of  bad  faith.  Cooperation  hi  promoting  an  isthmian 
canal  became  impossible. 

In  Washington  a  movement  got  under  way  in  favor  of  abrogat- 
ing the  treaty.  This  might  have  been  accomplished.  But 
Clayton,  then  a  senator,  defended  the  treaty.  "The  abrogation 
of  the  treaty  restores,"  said  Clayton,  "the  British  protectorate 
with  renewed  vigor;  and,  unless  immediately  after  it  shall  be 
annulled  we  shall  be  prepared  to  attack  her  in  Central  America, 
she  will  reassert  her  title  so  effectually  that  in  one  year  the  whole 
isthmus  will  be  under  her  influence. " 

Secretaries  Marcy  and  Cass  adopted  Clayton's  view.  As  a 
result  Great  Britain  agreed  to  negotiate  treaties  with  the  Central 
American  states  in  compliance  with  the  American  construction 
of  the  Clayton-Bulwer  Treaty.  In  the  treaty  with  Guatamala, 
1859,  the  boundaries  of  British  Honduras  were  determined.8 

'Malloy,  Treaties,  I.:  659. 

'Congressional  Globe,   1855-56,  appendix,  441. 

•Sen.  Ex.  Doc.,  194,  47  Cong.,  i  Sess.,  251. 


THE  PANAMA  CANAL  TREATIES  355 

In  the  treaty  with  Honduras,  the  same  year,  that  state  received 
the  Bay  Islands  and  its  share  of  the  Mosquito  protectorate.1 
With  Nicaragua  Great  Britain  agreed  to  withdraw  her  protect- 
orate from  the  Mosquito  Indians  and  to  yield  all  claims  to  Grey- 
town  with  the  understanding  that  it  should  be  a  free  port.2 
After  these  treaties  had  been  communicated  to  the  Department 
of  State  President  Buchanan  announced  in  his  message,  De- 
cember, 1860,  that  the  negotiations  had  resulted  "in  a  final 
settlement  entirely  satisfactory  to  this  government. " 

The  Civil  War  did  not  promote  mutual  confidence  between 
the  United  States  and  Great  Britain.  Nor  did  Louis  Napoleon's 
plans  for  an  empire  in  Mexico  encourage  the  United  States  to 
invite  other  powers  to  accede  to  the  Clayton-Bulwer  Treaty.  In 
his  special  message  to  Congress,  March  8, 1880,  President  Hayes 
gave  concise  expression  to  American  opinion  on  a  canal:  "An 
interoceanic  canal  across  the  American  Isthmus  will  essentially 
change  the  geographical  relations  between  the  Atlantic  and 
Pacific  coasts  of  the  United  States  and  between  the  United 
States  and  the  rest  of  the  world.  It  will  be  the  great  ocean 
thoroughfare  between  our  Atlantic  and  our  Pacific  shores,  and 

virtually  a  part  of  the  coast  line  of  the  United  States 

The  policy  of  this  country  is  an  American  canal  under  American 
control. " 

Hayes'  Secretary  of  State,  James  G.  Blaine,  sought  to  apply 
the  principle  of  rebus  sic  stantibus  to  the  Clayton-Bulwer  Treaty. 
Said  Blaine  in  an  instruction  to  James  Russell  Lowell,  November 
19,  1881 :  "This  convention  was  made  more  than  thirty  years  ago 
under  exceptional  and  extraordinary  conditions  which  have  long 
since  ceased  to  exist, — conditions  which  at  best  were  temporary 
in  their  nature,  and  which  can  never  be  reproduced. "  The  re- 
markable development  of  the  United  States  on  the  Pacific  coast 
had  brought  new  responsibilities.  Furthermore,  France  had 
become  a  sponsor  for  and  patron  of  a  canal  at  Panama.  Blaine 
requested  Lowell,  therefore,  to  present  for  the  consideration  of 
the  Foreign  Office  that  the  prohibition  on  the  United  States  to 

1  Sen.  Ex.  Doc.,  194,  47  Cong.,  i  Sess.,  308. 

2  Ibid.,  151,  315. 


356  LEADING  AMERICAN  TREATIES 

fortify  the  canal  should  be  cancelled  and  that  the  United  States 
should  be  free  to  acquire  naval  bases  on  the  isthmus.1  Lord 
Granville  replied  that  the  British  government  relied  with  con- 
fidence upon  the  execution  of  all  the  engagements  entered  into 
in  the  Clayton-Bulwer  Treaty.2 

Frelinghuysen  succeeded  Blame  as  Secretary  of  State  in  De- 
cember, 1882.  He  contended  that  the  primary  objects  of  the 
Treaty  of  1850  were  the  construction  of  a  canal  and  the  release 
by  Great  Britain  of  her  settlements  in  Central  America. 
Neither  had  been  accomplished,  due  to  the  attitude  of  Great 
Britain.  Hence,  he  held  the  treaty  to  be  voidable  at  the  pleas- 
ure of  the  United  States.  The  Foreign  Office  denied  stoutly 
this  proposition.  The  real  reason  for  the  attitude  of  the 
United  States  was  that  American  sentiment  in  favor  of  a 
canal  under  exclusively  American  control  had  become  insist- 
ent. 

The  events  of  1898  reinforced  this  conviction.  The  voyage  of 
the  "Oregon"  from  San  Francisco  around  the  Horn  to  join  the 
Atlantic  fleet  covered  13,400  miles;  whereas  the  voyage  would 
have  covered  only  4,600  miles  through  the  canal.  The  acquisi- 
tion of  the  Philippines  and  the  absorption  of  the  republic  of 
Hawaii  led  President  McKinley  to  urge  action  in  his  annual 
message  for  1898.  The  Senate  adopted  a  resolution  requesting 
McKinley  to  obtain  a  modification  or  the  abrogation  of  the 
Clayton-Bulwer  Treaty.  Fortunately,  John  Hay  occupied  the 
position  of  Secretary  of  State.  He  promptly  and  quietly  negoti- 
ated with  Lord  Pauncefote  a  treaty  providing  for  the  construc- 
tion, operation,  and  regulation  of  a  canal  by  the  United  States 
alone.  But  the  principles  of  neutralization  in  the  treaty  of  1850 
still  held.  There  could  be  neither  fortifications  nor  a  block- 
ade. The  President  sent  this  treaty  to  the  Senate,  February  5, 
1900. 

The  Senate  proceeded  to  amend  the  treaty  by  providing  for 
the  cancellation  of  the  Clayton-Bulwer  Treaty,  by  giving  the 
United  States  the  right  to  defend  the  canal,  and  by  refusing  to 

1  Foreign  Relations,  1881,  554. 
'Ibid.,  563. 


THE  PANAMA  CANAL  TREATIES  357 

permit  other  powers  to  adhere  to  the  convention.1  The  Foreign 
Office  did  not  approve  of  this  method  of  negotiating  a  treaty 
and  therefore  rejected  it.  However,  Lord  Lansdowne  suggested 
the  negotiation  of  a  new  treaty,  which  Hay  and  Pauncefote 
completed  November  18, 1901. 

The  first  article  abrogated  the  Clayton-Bulwer  Treaty.  The 
second  gave  the  United  States  the  complete  right  to  construct 
and,  subject  to  the  treaty,  to  regulate  and  operate  the  canal. 
The  third  article  contained  substantially  the  rules  of  neutraliza- 
tion and  free  navigation  of  the  Suez  Canal,  copied  from  the 
Treaty  of  October  28,  1888.  There  were  six  of  these  rules. 
The  first  rule  stated:  "  The  canal  shall  be  free  and'open  to  the  ves- 
sels of  commerce  and  of  war  of  all  nations  observing  these  rules, 
on  terms  of  entire  equality,  so  that  there  shall  be  no  discrim- 
ination against  any  such  nation,  or  its  citizens  or  subjects,  in 
respect  of  the  conditions  or  charges  of  traffic  or  otherwise.  Such 
conditions  and  charges  of  traffic  shall  be  just  and  equitable. " 

In  legislating  on  the  subject  of  tolls  Congress  assumed  that 
"all  nations"  meant  all  except  the  United  States  and  enacted  a 
law,  1912,  granting  exemption  from  tolls  to  American  vessels 
engaged  in  the  coastwise  trade.  The  British  government  feared 
further  discriminating  legislation  and  asked  that  the  coastwise 
vessels  be  included  in  the  computation  of  a  reasonable  rate.  The 
Foreign  Office  conceded  that  the  United  States  might  remit  or 
refund  the  amount  of  the  tolls  on  coastwise  vessels  as  a  subsidy. 
On  March  5,  1914,  President  Wilson  urged  Congress  to  repeal 
the  exemption  granted  to  coastwise  vessels.  Congress  did  so, 
June  15,  1914. 

The  second  rule  stipulated  that  the  canal  should  neither  be 
blockaded  nor  any  act  of  war  or  hostility  be  committed  within  it. 
The  United  States  should  be  at  "liberty  to  maintain  such  mili- 
tary police  along  the  canal  as  may  be  necessary  to  protect  it 
against  lawlessness  and  disorder."  The  treaty  contained  no 
statement  giving  the  United  States  the  right  to  fortify  the  canal. 
Great  Britain  could  give  no  such  right.  Nor  was  there  any  state- 
ment forbidding  fortification.  The  canal  has  been  fortified.  The 
1  Sen.  Doc.  456,  63  Cong.,  2  Sess.,  9. 


358  LEADING   AMERICAN  TREATIES 

right  to  do  so  is  based  on  Lord  Lansdowne's  note l  of  August  3, 

1 90 1,  expressing  acquiescence,  and  on  Articles  III  and  XXIII  of 
the  Hay-Bunau-Varilla  Treaty.    Panama  granted  thereby  to  the 
United  States  the  same  right  as  "if  it  were  the  sovereign  of  the 
territory.  .  .  and  grants  expressly  the  right  to  establish  fortifica- 
tions for  the  safety  or  protection  of  the  canal. "  2 

The  third  rule  regulated  in  general  terms  the  passage  through 
the  canal  of  vessels  of  war  and  prizes.  The  fourth  specified  that 
barring  accidental  hindrance  to  transit  no  belligerent  could  there 
embark  or  disembark  troops  or  munitions  of  war.  The  fifth  rule 
applied  all  of  the  six  rules  to  the  marine  league  at  either  end 
of  the  canal  and  specified  that  no  belligerent  vessel  should  re- 
main in  those  waters  more  than  twenty-four  hours  at  one  time, 
except  when  in  distress,  and  that  twenty-four  hours  should 
elapse  between  the  departure  of  war  vessels  of  opposing  belli- 
gerents. According  to  the  sixth  rule  the  canal,  the  buildings,  and 
the  machinery  necessary  for  operation  should  in  time  of  war  be 
immune  from  attack  or  injury  by  belligerents. 

By  Article  IV  the  parties  agreed  that  no  change  of  territorial 
sovereignty  should  affect  the  principles  of  neutralization  of  the 
obligations  of  the  contracting  parties.  The  last  article  provided 
for  an  exchange  of  ratifications  within  six  months.3 

The  Senate  advised  ratification  by  a  vote  of  72  to  6  on 
December  16, 1901.  The  President  ratified  on  December  26;  the 
ratifications  were  exchanged  on  February  21;  and  President 
Roosevelt  proclaimed  the  treaty  on  Washington's  birthday, 

1902.  The  more  than  half  century  of  sparring  between  the 
United    States    and   Great    Britain   over    Central   American 
and  isthmian  canal    affairs  ended  in  triumph  for  American 
diplomacy. 

The  United  States  had  before  it  the  task  of  deciding  upon  a 
route  and  of  obtaining  the  right  of  way.  Americans  favored 
generally  the  Nicaragua  route.  That  route  had  received  the 
approval  of  Alexander  von  Humboldt,of  the  King  of  the  Nether- 

1  Sen.  Doc.  456,  63  Cong.,  2  Sess.,  52. 

*See  Am.   Journal  of  Int.  Law,  V.:  208  (R.  Olney),  615  (E.  Wambaugh), 
and  620  (C.  Kennedy). 
•Malloy,  Treaties,  I.:  782. 


THE  PANAMA  CANAL  TREATIES  359 

lands  in  1828,  of  Louis  Napoleon  while  a  prisoner  at  Ham,  of 
Colonel  Childs  in  his  accurate  survey  of  1850,  and  of  a  group  of 
New  York  business  men  headed  by  Commodore  Vanderbilt. 
The  Vanderbilt  company  operated  a  line  of  steamers  on  the  San 
Juan  River  and  Lake  Nicaragua  together  with  a  stage  coach 
line  on  to  the  Pacific  for  the  benefit  of  the  California  gold  seekers. 
In  1872  President  Grant  sent  an  able  commission  to  make 
surveys  of  the  various  isthmian  routes.  The  report  favored 
Nicaragua.  A  group  of  New  York  business  men  obtained  from 
Nicaragua  the  exclusive  right  to  build  a  canal,  April  24,  1887. l 
Warner  Miller  became  president  of  the  construction  company 
which  spent  during  three  years  more  than  $5,000,000  in  dredging 
the  harbor  of  Greytown  and  in  building  two  miles  of  a  canal. 
The  stringency  leading  up  to  the  panic  of  1893  compelled  this 
company  as  well  as  the  French  company  at  Panama  to  go  into 
the  hands  of  a  receiver.  Senators  Sherman  and  Morgan  favored 
governmental  aid  at  Nicaragua,  but  Congress  did  not  act.  In 
1898  the  Grace-Eyre-Cragin  syndicate  was  formed  with  such 
men  as  W.  R.  Grace,  J.  A.  McCall,  Warner  Miller,  J.  J.  Astor, 
George  Westinghouse,  D.  O.  Mills,  Levi  P.  Morton,  and  G.  T. 
Bliss  as  directors.  These  movements  and  men  kept  interest 
alive  in  the  Nicaragua  route. 

The  Treaty  of  1846  with  New  Granada  had  for  an  object  a 
canal  as  well  as  a  railway  by  the  Panama  route.  The  Clayton- 
Bulwer  Treaty  included  Panama  as  one  of  the  possible  routes. 
Lucien  N.  P.  Wyse  obtained  a  charter  from  Colombia  for  a 
canal  company  and  he  induced  Ferdinand  de  Lesseps,  the  builder 
of  the  Suez  canal,  to  serve  as  president.  Between  1881  and  1889 
the  French  company  spent  $260,000,000  without  having  half 
completed  the  project.  Rumors  of  scandal  compelled  a  parlia- 
mentary investigation  which  uncovered  sufficient  fraud  and 
corruption  so  that  the  company  could  raise  no  more  money  and 
went  into  bankruptcy.  Several  interested  Frenchmen  organized 
the  New  Panama  Canal  Company  to  keep  alive  the  franchises 
of  the  old  company,  to  take  over  the  administration  of  the 
Panama  Railroad,  and  to  salvage  the  equipment.  With  the 
1  Senate  Report  No.  i,  57  Cong.,  i  Sess.,  479. 


360  LEADING  AMERICAN  TREATIES 

revival  of  American  interest  in  a  canal  during  the  Spanish 
American  war  this  company  became  anxious  to  sell  its  rights  to 
the  United  States. 

Congress  created  in  1899  the  isthmian  canal  commission  with 
Admiral  Walker  as  chairman  to  examine  all  practicable  routes. 
For  physical  reasons  the  report  favored  the  Panama  route  with 
a  lock  canal.  But  Colombia  had  granted  an  exclusive  con- 
cession to  the  French  company  which  held  at  least  until  1904. 
Colombia  was  therefore  not  free  to  grant  the  necessary  rights 
to  the  United  States,  except  upon  condition  that  an  agree- 
ment be  reached  with  the  New  Panama  Canal  Company. 
That  company  had  refused  to  sell  its  franchise  but  would  allow 
the  United  States  to  become  an  owner  of  a  part  of  its  stock. 
The  commission  considered  such  an  agreement  impracti- 
cable. 

The  Nicaragua  route  would  require  the  construction  of  an 
artificial  harbor  at  each  end;  the  Panama  route  had  the  good 
harbors  of  Colon  and  Panama.  The  estimated  cost  for  a  lock 
canal  at  Nicaragua  was  $200,540,000  as  against  $156,378,258 
for  Panama.  The  time  required  for  a  vessel  to  pass  through  the 
170  miles  at  Nicaragua  would  be  33  hours  as  compared  with  12 
hours  to  pass  through  the  40  miles  at  Panama.  But  the  distance 
from  New  York  to  San  Francisco  would  be  377  miles  shorter 
by  way  of  Nicaragua.  The  estimate  of  cost  of  maintenance  at 
Nicaragua  was  the  greater.  But  in  order  to  place  the  canal 
"under  the  control,  management  and  ownership  of  the 
United  States"  the  commission  recommended  the  Nicaragua 
route.1 

The  report  caused  the  New  Panama  Canal  Company  to 
express  its  willingness  to  sell  and  it  obtained  permission  from 
Colombia  to  do  so.2  The  price  on  its  franchise,  property,  and 
unfinished  work  dwindled  from  $109,141,500  in  1901  to 
$40,000,000  in  January  of  1902.  Admiral  Walker  asked  for  and 
obtained  from  M.  Hutin  of  the  canal  company  copies  of  the 
approval  of  the  proposed  transaction  by  the  minister  of  Colombia, 

1  Sen.  Doc.  54,  57  Cong.,  i  Sess.,  Pt.  i :  263 
J  Foreign  Relations,  1903,  139. 


THE  PANAMA  CANAL  TREATIES  361 

Martinez-Silva.1  Thereupon,  the  canal  commission  issued  a 
supplementary  report,  reversing  its  previous  conclusion  and 
recommending  the  Panama  route. 

Since  May  15, 1897,  the  Department  of  State  had  been  receiv- 
ing communications  from  ministers  of  Colombia  favoring  the  Pan- 
ama route  and  even  laying  claim  to  the  territory  through  which 
the  Nicaragua  canal  would  have  to  pass.2  On  March  31,  1902, 
Minister  Concha  wrote  to  Secretary  Hay:  "Colombia  has  no 
lust  of  unjust  gain  through  the  construction  of  the  canal  in  her 
territory,  and  a  final  convention  on  this  subject  will  not  be 
hampered  by  pecuniary  considerations. " 3  He  enclosed  a 
memorandum  of  points  to  be  considered  in  drawing  up  a 
treaty. 

Two  weeks  later  Concha  submitted  a  draft  of  a  treaty. 
Colombia  authorized  thereby  the  Panama  Canal  Company  to 
"transfer  to  the  United  States  its  rights,  privileges,  properties, 
and  concessions,  as  well  as  the  Panama  Railroad  and  all  of  the 
shares  or  part  of  the  shares  of  that  company, "  with  the  exception 
of  the  public  lands  situated  outside  of  the  canal  zone.  The 
United  States  should  have  the  exclusive  right  to  build  and  oper- 
ate the  canal  and  for  that  purpose  should  receive  a  strip,  ten 
kilometers  wide,  across  the  isthmus  for  a  term  of  ninety-nine 
years.  The  provision  in  the  Treaty  of  1846  that  the  United 
States  should  guarantee  the  neutrality  of  the  isthmus  for  pur- 
poses of  transit  was  inserted.  The  United  States  should  recog- 
nize the  sovereignty  of  Colombia  within  the  canal  zone.  The 
Hay-Paunceforte  Treaty  received  recognition.  Should  it 
happen  that  Colombia  could  not  effectively  protect  the 
canal  with  her  armed  forces  the  United  States  should  then 
furnish  the  adequate  force.  As  compensation  the  United  States 
should  pay  an  annuity  of  $250,000  for  the  railroad,  a  cash  pay- 
ment of  $7,000,000  for  the  zone  and,  fourteen  years  after  the 
exchange  of  ratifications,  a  reasonable  annuity  for  the  use  of  the 
canal  route.4 

1  Sen.  Doc,  474,  63  Cong.,  2  Sess.,  384. 
*Ibid.,  250,  493' 

3  Ibid.,  552. 

4  Ibid.,  556. 


362  LEADING  AMERICAN  TREATIES 

Secretary  Hay  acknowledged  the  receipt  of  this  draft,  April 
21,  1902:  "I  am  directed  by  the  President  to  inform  you  that  I 
shall  be  ready  to  sign  with  you  the  proposed  convention  as  soon 
as — First,  the  Congress  of  the  United  States  shall  have  author- 
ized the  President  to  enter  into  such  an  arrangement;  and — 
Second.  As  soon  as  the  law  officers  of  the  Government  shall  have 
decided  upon  the  question  of  the  title  which  the  New  Panama 
Canal  Company  is  able  to  give  of  all  the  properties  and  rights 
claimed  by  it  and  pertaining  to  a  canal  across  the  Isthmus  and 
covered  by  the  pending  proposal."  l 

The  recommendation  of  the  isthmian  canal  commission  won 
gradually  the  support  of  President  Roosevelt  and  the  leaders  of 
both  houses  of  Congress.  The  House  of  Representatives  passed 
the  Hepburn  bill  favoring  Nicaragua.  But  the  Senate  substi- 
tuted a  bill  drafted  by  John  C.  Spooner,  authorizing  the  Presi- 
dent to  buy  the  franchises,  property,  and  unfinished  work  of  the 
New  Panama  Canal  Company  for  not  more  than  $40,000,000  and 
to  obtain  from  Colombia  the  perpetual  control  of  a  strip  of  land 
not  less  than  six  miles  wide.  The  United  States  should  have  the 
right  to  make  and  enforce  police  and  health  regulations  and  to 
establish  courts  on  the  canal  zone  and  in  the  ports  at  each  end. 
And  should  the  President  be  unable  to  secure  a  satisfactory  title 
from  the  French  canal  company  or  the  specified  right  and  control 
of  the  strip  from  Colombia  "  within  a  reasonable  time  and  upon 
reasonable  terms, "  he  should  then  negotiate  treaties  with  Costa 
Rica  and  Nicaragua  for  the  territory  necessary  to  construct 
a  Nicaragua  canal.2  President  Roosevelt  signed  the  measure 
with  alacrity  on  June  28,  1902. 

In  accordance  with  his  agreement  Secretary  Hay  proposed  the 
changes  in  the  Concha  draft  made  necessary  by  the  Spooner  act. 
One  change  related  to  the  phrase  "  in  perpetuity. "  Concha 
pointed  out  that  this  would  mean  an  alienation  of  the  canal 
zone  and  would  require  an  amendment  to  the  Colombian  con- 
stitution. He  proposed  to  lease  the  zone  "for  the  term  of 
one  hundred  years,  renewable  at  the  option  of  the  United 

'Sen.  Doc.,  474,  63  Cong.,  a  Seas.,  565. 
'32  Stat.  481. 


THE  PANAMA  CANAL  TREATIES  363 

States.  .  ."  Hay  yielded,  although  he  made  the  term  more 
definite,  thus:  "for  the  term  of  one  hundred  years,  renew- 
able at  the  sole  and  absolute  option  of  the  United  States  for 
periods  of  similar  duration  so  long  as  the  United  States  may 
desire. "  * 

Concha  came  forward  with  three  proposed  changes  in  his  own 
draft.  First,  that  the  property  of  the  Panama  Canal  Company 
lying  outside  the  canal  zone  should  not  be  transferred  in  the 
sale  to  the  United  States  but  should  revert  to  Colombia.  Second, 
that  the  canal  company  must  obtain  a  prior  release  from  Colom- 
bia before  it  could  sell  and  transfer  its  rights  and  property  to  the 
United  States.  Third,  that  Colombia  should  have  additional  in- 
demnity.2 Hay  expressed  surprise  at  the  fresh  basis  of  pecuniary 
indemnity.  In  connection  with  the  first  and  second  points  he 
could  not  believe  that  Colombia  meant  to  hamper  the  United 
States  in  the  construction  of  the  canal.  It  had  been  ascertained 
by  the  Attorney  General  that  the  canal  company  was  in  possession 
of  valuable  property  in  the  ports  of  Colon  and  Panama  outside 
the  canal  zone,  consisting  of  terminal  facilities  and  means  of 
transportation  requisite  and  essential  to  the  construction  of  a 
canal.3  The  Spooner  act  conceived  of  this  property  as  being 
covered  by  the  $40,000,000  to  be  paid  to  the  New  Panama 
Canal  Company,  which  owned  six-sevenths  of  the  shares  in  the 
Panama  Railway  Company. 

In  his  reply  Concha  pleaded  lack  of  instructions  and  con- 
tinued to  do  so  until  October  26,  1902.  He  then  acknowledged 
that  he  had  received  instructions,  and  stated  that  in  his  opinion 
these  had  been  vitiated  by  the  action  of  the  United  States  naval 
officers  during  a  recent  insurrection  in  the  department  of  Panama. 
This  action,  Concha  held,  constituted  a  new  interpretation  of 
Article  35  of  the  Treaty  of  1846,  which  article  had  been  included 
in  the  proposed  treaty. 

During  this  insurrection  Rear  Admiral  Casey  had  ordered 
the  landing  of  marines  to  insure  that  no  interruption  to  traffic 

1  Sen.  Doc.  474,  63  Cong.,  2  Sess.,  261. 
'Ibid.,  258. 
3  Ibid.,  261. 


364  LEADING  AMERICAN  TREATIES 

on  the  Panama  Railroad  occurred.  He  had  complied  with  a 
duty  well  established  by  the  United  States  through  practice  in 
execution  of  Article  35  of  the  Treaty  of  I846.1 

This  article  forms  by  itself  a  distinctive  international  agree- 
ment. Under  its  terms  "  the  government  of  New  Granada  guar- 
antees to  the  government  of  the  United  States  that  the  right 
of  way  or  transit  across  the  Isthmus  of  Panama  upon  any  modes 
of  communication  that  now  exist,  or  that  may  be  hereafter  con- 
structed, shall  be  free  and  open  to  the  Government  and  citizens 
of  the  United  States. "  In  return  "The  United  States  guarantees 

positively  and  efficaciously,  to  New  Granada the  perfect 

neutrality  of  the  before  mentioned  Isthmus,  with  the  view  that 
the  free  transit  from  the  one  to  the  other  sea  may  not  be  in- 
terrupted or  embarrassed. "  And  "  in  consequence,  the  United 
States  also  guarantee,  in  the  same  manner,  the  rights  of  sov- 
ereignty and  property  which  New  Granada  has  and  possesses 
over  the  said  territory.  "2 

Secretary  Hay  refused  to  admit  that  any  question  concerning 
the  interpretation  of  this  article  existed.  The  United  States 
had  thereby  obligated  itself  to  protect  New  Granada,  later 
Colombia,  against  foreign  invasion,  not  against  domestic  in- 
surrection or  its  consequences.3  Hay  was  not  the  first  Sec- 
retary of  State  to  so  interpret  the  treaty.  Colombia  had  asked 
for  American  troops  to  put  down  an  insurrection  in  Panama  in 
1865.  Secretary  Seward  replied  that  the  request  had  been  sub- 
mitted to  the  Attorney  General  whose  opinion  held  that  "The 
purpose  of  the  stipulation  was  to  guarantee  the  Isthmus  against 
seizure  or  invasion  by  a  foreign  power  only. "  4  Secretary  Fish 
expressed  the  same  view  to  the  Colombian  minister  May  27, 
1871. 5  And  for  the  protection  of  transit  across  the  isthmus  the 
United  States  had  at  the  request  of  the  local  authorities  at 
Panama  landed  troops  in  1856,  1860,  1861,  1873,  and  1901; 
at  the  request  of  Colombia  in  1862;  and  at  the  request 

1  Sen.  Doc.  143,  58  Cong.,  2  Sess.,  2. 

'Malloy,  Treaties,  I.:  312. 

1  Sen.  Doc.,  474,  63  Cong.,  2  Sess.,  256,  260. 

4  Ibid.,  476. 

*Ibid.,  502. 


THE  PANAMA  CANAL  TREATIES  365 

of  the  United  States  consul  in  1865,  1885,  and  September, 
1902. l 

The  Concha  correspondence  continued  to  express  apprehen- 
sion for  Colombia's  sovereignty.  He  feared  the  courts  specified 
in  the  Spooner  act  could  not  be  provided  for  in  the  treaty. 
But  the  main  point  at  issue  was  money  and  more  money.  Hay 
offered  $10,000,000  in  cash  and  $10,000  annual  rental  or 
$7,000,000  in  cash  and  $100,000  annual  rental.  Concha  refused 
to  accept  either  alternative.2  But  he  did  mention  that  the  fran- 
chise of  the  New  Panama  Canal  Company  would  soon  expire, 
that  by  the  terms  of  the  contract  the  company  could  not  transfer 
its  rights  to  a  third  party,  and  that  at  the  expiration  of  the  con- 
tract the  rights  of  the  company  would  be  restored  to  Colombia. 
He  stated:  "The  time  during  which  the  companies  are  to  have 
the  usufruct  of  those  properties  being  thus  limited,  it  is  clear  that 
if  the  properties  have  any  considerable  value  that  value  belongs 
to  Colombia,  and  there  is  no  reason  or  motive  for  paying  the 
value  over  to  the  companies  or  for  Colombia  to  cede  the  pro- 
perties gratuitously. "  3 

This  sentence  furnishes  the  keynote  to  the  policy  adopted  by 
the  Colombian  government  toward  the  canal.  Had  not  the 
United  States  committed  itself  to  the  Panama  route?  True, 
the  Spooner  act  contained  a  possible  alternative.  But  were 
not  the  leaders  of  Congress  determined  and  the  young  President 
and  his  able  Secretary  of  State  impatient  to  begin  operations 
at  Panama?  Why  should  the  New  Panama  Canal  Company  be 
paid  for  the  port  and  terminal  facilities  and  other  rights  in  Colon 
and  Panama?  Said  Concha:  "Colombia  has  already  exercised 
an  act  of  exceptional  liberality  in  extending,  in  favor  of  the 
canal  company,  the  time  limit  for  the  construction  of  the  work 
which  has  had  the  sole  effect  of  allowing  to  the  company  the 
possibility  of  recovering  a  part  of  its  capital  which,  without  this 

1  Sen.  Doc.,  143,  58  Cong.,  2  Sess.,  4,  5,  7,  12,  25,  44,  52,  176. 

JSen.  Doc.,  474,  63  Cong.,  2  Sess.,  268. 

3  Ibid.,  265.  Official  translation  slightly  changed.  The  original  follows: 
"limitado  como  esta  el  tiempo  por  el  cual  las  Companias  han  de  usufructuar 
esas  propiedades,  es  claro  que  si  estas  tienen  un  gran  precio,  el  pertenece  a 
Colombia,  y  no  hay  razon  o  motivo  para  que  se  le  pague  a  las  Companias, 
o  para  que  su  dueno  las  ceda  gratuitamente." 


366  LEADING  AMERICAN  TREATIES 

extension  of  time,  would  have  passed  months  ago  to  Colombia.  "l 
Why  should  not  Colombia  wait  until  the  expiration  of  the  fran- 
chise of  the  canal  company,  October,  1904,  and  reap  for  itself  at 
least  the  $40,000,000  which  the  Spooner  act  provided  should  be 
paid  to  the  canal  company  for  its  franchise  and  property  rights? 

Colombia  recalled  Minister  Concha  and  left  the  legation  in 
the  care  of  the  charge  d'affaires,  Tomas  Herran.  The  question 
of  compensation  continued  in  suspense.  Hay  increased  the  cash 
offer  from  $7,000,000  to  $10,000,000  and  the  annual  rental  from 
$10,000  to  $100,000.  Herran  asked  for  $10,000,000  in  cash  and 
an  annuity  of  $600,000  and  the  right  to  reach  an  agreement  with 
the  canal  company  before  that  company  could  transfer  its  rights 
to  the  United  States.2  Finally,  Secretary  Hay  wrote  to  Herran, 
January  22,  1903:  "I  am  commanded  by  the  President  to  say 
to  you  that  the  reasonable  time  that  the  statute  accords  for  the 
conclusion  of  negotiations  with  Colombia  for  the  excavation  of  a 
canal  on  the  Isthmus  has  expired,  and  he  has  authorized  me  to 
sign  with  you  the  treaty  of  which  I  had  the  honor  to  give  you  a 
draft,  with  the  modification  that  the  sum  of  $100,000,  fixed  there- 
in as  the  annual  payment,  be  increased  to  $250,000.  I  am  not 
authorized  to  consider  or  discuss  any  other  change. "  3  Hay  and 
Herran  affixed  their  signatures  on  the  evening  of  the  same  day. 

Essentially,  the  treaty  contained  the  provisions  of  the  Concha 
draft.  Colombia  approved  the  sale  of  the  canal  company's 
rights  and  properties  to  the  United  States,  including  those  hi  the 
ports  and  terminals  of  Colon  and  Panama.  The  United  States 
had  increased  the  compensation.  The  United  States  expressly 
recognized  the  sovereignty  of  Colombia  over  the  canal  zone. 
Colombia  could  establish  courts  in  the  zone  for  the  hearing  of 
cases  affecting  her  citizens.  The  United  States  could  do  so  for 
the  hearing  of  cases  affecting  its  citizens.  Both  parties  agreed  to 
establish  a  joint  tribunal  to  decide  cases  between  the  citizens  of 
the  United  States  and  those  of  Colombia  and  cases  affecting 
foreigners.4  After  a  rather  long  and  sharp  debate  the  United 

1  Sen.  Doc.  474,  63  Cong.,  2  Sess.,  266. 
'Ibid.,  399. 

1  Freehoff,  America  and  the  Canal  TitU,  71. 
4  Sen.  Doc.  474,  63  Cong.,  2  Sess.,  278. 


THE  PANAMA  CANAL  TREATIES  367 

States  Senate  advised  the  ratification  of  the  treaty,  March  17, 
1903. 

The  constitution  of  Colombia  required  President  Marroquin 
to  give  forty  days  notice  of  a  call  for  a  special  session  of  Congress. 
He  made  no  move  until  May  7,  when  he  set  June  20  for  Congress 
to  convene.  When  Congress  did  meet  he  gave  his  opinion  of  the 
treaty  in  these  words:  "My  Government  is  faced  with  this 
dilemma:  We  must  either  allow  our  sovereign  rights  to  suffer  and 
renounce  certain  pecuniary  advantages  to  which,  according  to 
the  opinion  of  many,  we  have  a  right,  or  we  must  rigorously 
stand  up  for  our  sovereign  rights  and  claim  peremptorily  the 
pecuniary  indemnification  to  which  we  have  a  right  to  consider 
ourselves  entitled.  In  the  first  case — that  is,  should  we  consent 
to  the  curtailment  of  our  sovereignty  and  not  aspire  to  the  full 
indemnity,  should  the  canal  be  opened  through  Panama,  the 
just  wishes  of  the  inhabitants  of  that  department  and  of  all 
Colombians  will  be  satisfied;  but  the  Government  lays  itself 
open  to  being  charged  in  the  future  with  not  having  duly 
defended  our  sovereignty  and  with  having  sacrificed  the  interests 
of  the  nation.  In  the  second  case,  should  the  canal  not  be 
opened  through  Panama  it  will  be  laid  to  the  charge  of  the  Gov- 
ernment that  it  did  not  allow  Colombia  to  benefit  by  the  under- 
taking which  is  regarded  as  the  foundation  of  our  future  great- 
ness  Happily  for  me,  the  immense  responsibility  of  com- 
ing to  a  decision  falls  to  Congress. "  *  He  closed  the  part  of  the 
address  relating  to  the  canal  with  these  words:  "It  has  been  our 
indisputable  diplomatic  triumph  that  the  Senate  and  Govern- 
ment of  the  United  States  should  declare,  notwithstanding  every 
effort  to  the  contrary,  the  superiority  of  the  Colombian  route. " 

At  no  time  did  Marroquin  or  any  of  his  ministers  advocate 
before  Congress  the  acceptance  of  the  treaty.  Marroquin  did 
notify  M.  Mancini,  the  local  agent  of  the  canal  company  that  the 
treaty  would  probably  not  be  ratified,  because  of  the  inadequate 
compensation;  but  if  the  canal  company  would  advance 
$10,000,000,  the  ratification  could  then  be  secured.2  At  the 

1  Sen.  Doc.  474,  63  Cong.,  2  Sess.,  407. 
3  Foreign  Relations,  1903,:  i$p. 


368  LEADING  AMERICAN  TREATIES 

same  time,  Dr.  Rico,  Minister  of  Foreign  Affairs,  conducted  a 
lengthy  dispute  with  A.  M.  Beaupre,  the  American  minister  in 
Bogota,  over  the  right  of  the  United  States  to  acquire  the  fran- 
chise and  property  of  the  canal  company  without  the  consent  of 
Colombia. 

Secretary  Hay  replied  that  Colombia  had  given  her  approval 
when  she  authorized  the  signing  of  the  Hay-Herran  Treaty 
and  that  she  had  given  her  approval  in  various  other  ways. 
First,  her  minister,  Dr.  Martinez-Silva,  had  officially  assured  the 
United  States,  March  27,  1901,  that  Colombia  would  authorize 
the  canal  company  to  transfer  its  concessions.  Second,  Martinez- 
Silva  had  written  M.  Hutin,  president  of  the  canal  company, 
April  29,  1901,  requesting  a  statement  of  the  general  terms  on 
which  the  company  proposed  to  transfer  its  property  to  the 
United  States.  Hutin  furnished  the  statement,  May  i,  1901,  and 
thereupon  took  up  negotiations  with  Admiral  Walker.  Hutin 
notified  Martinez-Silva  of  the  progress  of  these  negotiations  on 
May  6,  1901.  On  the  next  day  Martinez-Silva  wrote  Hutin, 
approving  his  action  and  stating  that  the  following  words  had 
been  used  in  a  memorandum  submitted  to  the  Department  of 
State,  "no  condition  is  formulated  relative  to  the  sale  of  the 
private  rights  and  interests  of  the  company. "  Third,  Secretary 
Hay  noted  that  Colombia  had  been  the  second  largest  share- 
holder in  the  canal  company  and  that  her  consul  general  in  Paris 
had  been  especially  accredited  to  attend  a  meeting  of  the  share- 
holders, December  21,  1901,  and  had  voted  the  shares  of  Colom- 
bia in  favor  of  the  sale.  Furthermore,  at  a  meeting  of  the  board 
of  directors  of  the  company,  Paris,  December  23,  1901,  Samper, 
the  Colombian  representative,  had  voted  in  favor  of  the  sale. 
Hay  concluded  that  separate  and  apart  from  the  Hay-Herran 
Treaty  Colombia  had  given  her  consent  fully  and  freely  to  the 
acquisition  of  the  property  of  the  canal  company  by  the  United 
States.  "It  is  not  necessary  here,"  said  Hay,  "to  consider 
the  questions  of  good  faith  toward  the  canal  company  which 
would  be  raised  by  new  exactions  of  that  company  at  this 
time."1 

•Foreign  Relations,  1903:  136. 


THE  PANAMA  CANAL  TREATIES  369 

By  July  15,  1903,  nothing  had  been  accomplished.  On  that 
day  the  Senate  referred  the  treaty  to  a  special  committee,  which 
should  report  on  or  before  July  31.  On  July  21,  Beaupre  re- 
ported to  the  Department  of  State  that  he  had  "certain,  but 
private,  information"  that  Senator  Uricoechea  of  the  special 
committee  had  called  on  Baron  Grunau,  the  German  charge  d' 
affaires,  to  inquire  what  attitude  the  German  government  would 
take  if  failure  to  ratify  the  Hay-Herran  Treaty  should  cause 
trouble  with  the  United  States.  Baron  Grunau  had  replied  that 
he  had  no  instructions,  that  he  was  of  the  opinion  that  Germany 
desired  at  that  moment  to  remain  on  friendly  terms  with  the 
United  States,  and  that  he  would  submit  the  matter  to  Berlin. 
Desirous  as  Germany  at  that  time  was  to  expand  territorially 
and  commercially,  Colombia  had  good  reason  to  approach  her; 
but  it  is  not  known  that  Germany  in  any  way  urged  Colombia 
to  refuse  to  ratify  the  treaty.  Shortly  afterward  a  member  of 
the  lower  house  called  on  the  British  minister  in  Bogota  to 
inquire  what  the  British  attitude  would  be.  The  British  min- 
ister replied  that  his  government  had  considered  the  question 
thoroughly  and  that  it  felt  satisfied  with  the  arrangements  in  the 
Hay-Pauncefote  Treaty.1 

The  special  committee  of  the  Senate  made  its  report  on 
August  4,  1903,  and  recommended  various  amendments,  i. 
Before  the  canal  company  could  transfer  its  rights  to  the  United 
States  the  company  should  be  obliged  to  obtain  permission  from 
Colombia.  2.  The  idea  of  tenancy  on  the  zone  by  the  United 
States  should  be  made  more  specific  so  as  to  exclude  any  concep- 
tion of  ownership.  3.  Any  reference  to  the  application  of 
United  States  law  in  the  zone  should  be  suppressed.  4.  Addi- 
tional indemnity  to  Colombia  received  mention  but  the  commit- 
tee left  the  amount  indefinite.  5.  The  committee  insisted  that 
the  guaranty  in  the  Treaty  of  1846  should  apply  to  the  zone  and 
to  the  whole  department  of  Panama.2 

On  August  12,  1903,  the  treaty  came  up  for  debate  in  the 
Senate,  the  only  debate  that  the  treaty  received.  Senators 

1  Foreign  Relations,  1903,  166. 
'Ibid.,  172. 


370  LEADING  AMERICAN  TREATIES 

Caro  and  Arango  taunted  the  government  with  cowardice  for  not 
daring  to  assume  responsibility  for  the  treaty.  Senator  Ospina 
felt  that  the  constitution  should  be  first  amended  so  as  to  enable 
the  government  to  lease  the  zone  and  to  allow  the  United  States 
to  establish  tribunals  there.  Senator  Rodriguez  expressed  his 
friendly  disposition  toward  the  United  States,  but  he  would,  as 
privately  agreed  upon,  vote  against  the  treaty.  At  the  close  of 
the  debate  the  vote  was  taken.  Every  senator  present  voted 
against  the  ratification  of  the  treaty.  The  few  senators  who  had 
previously  announced  their  support  of  the  treaty  remained 
absent.  This  held  notably  true  of  Obaldia  of  Panama.  He  had 
grown  so  disappointed  with  the  course  of  events  at  Bogota  that 
he  declared  openly  his  department  would  revolt  and  declare 
its  independence.1 

A  joint  committee  of  the  two  houses  was  appointed  to  draft 
a  law  authorizing  the  President  to  negotiate  a  treaty  concerning 
a  canal  or  a  contract  with  a  private  company.  This  committee 
reported  a  bill,  September  4,  1903,  which  provided  that  any 
treaty  negotiated  should  include  a  payment  to  Colombia  of 
$20,000,000  in  cash  and  of  an  annuity  of  $400,000  and  a  payment 
of  $10,000,000  by  the  canal  company  before  Colombia  would 
give  her  permission  for  the  transfer  of  the  company's  rights.  The 
police  and  sanitary  measures  on  the  canal  zone  should  be  com- 
pletely under  Colombia's  jurisdiction.2 

This  bill  was  referred  to  a  Senate  committee  which  made  its 
report  on  October  14,  1903.  The  report  concluded  that  the 
Hay-Herran  Treaty  had  ceased  to  exist  because  of  its  rejection 
by  the  Senate  and  because  the  time  for  the  exchange  of  ratifica- 
tions, September  22,  had  expired.  The  report  advised  that  no 
action  be  taken  for  another  year,  for  by  that  time  the  franchise 
of  the  New  Panama  Canal  Company  would  expire.  To  quote 
from  the  report,  "By  the  3ist  of  October  of  next  year — that  is  to 
say,  when  the  next  Congress  shall  have  met  in  ordinary  session — 
the  extension  will  have  expired  and  every  privilege  with  it.  In 
that  case  'the  Republic  will  become  the  possessor  and  owner 

'Foreign  Relations,   1003,  180,  184. 
2  Ibid.,    191,   199. 


THE  PANAMA  CANAL  TREATIES  371 

without  any  need  of  a  previous  judicial  decision  and  without 
any  indemnity,  of  the  canal  itself  and  of  the  adjuncts  that  belong 
to  it,  according  to  the  contracts  of  1878  and  1890.'  When  that 
time  arrives,  the  Republic,  without  any  impediment,  will  be  able 
to  contract,  and  will  be  in  more  clear,  more  definite,  and  more 
advantageous  possession  both  legally  and  materially."  The 
committee  considered  a  six  year  extension  of  the  franchise, 
granted  in  1900,  of  questionable  validity.1  Neither  house  acted 
on  the  bill  or  on  the  report.  Congress  adjourned  October  31, 
1903. 

Throughout,  the  Colombian  press  took  the  attitude  that  a 
powerful  nation  was  seeking  for  selfish  motives  to  take  advan- 
tage of  a  weaker  one.  "El  Correo  Nacional"  on  May  n,  1903, 
carried  a  long  article  by  Senator  Perez  y  Sota  in  which  he 
prophesied  the  rejection  of  the  treaty  and  concluded:  "The  in- 
sult, however,  which  Herran  has  cast  upon  the  Colombian  name 
will  never  be  wiped  out.  The  gallows  would  be  a  small  punish- 
ment for  criminals  of  this  class. "  Dr.  Nova  Zerda,  a  prominent 
Bogota  lawyer,  published  a  statement  that  under  the  Hay- 
Herran  Treaty  the  United  States  would  reap  during  the  first 
hundred  years  a  net  profit  from  the  canal  of  $1,186,537,377. 
An  Englishman,  J.  T.  Ford,  consulting  engineer  to  the  Colom- 
bian government,  published  a  reply  with  the  conclusion  that  if 
Colombia  should  attempt  to  build  the  canal  herself  she  would 
suffer  a  deficit  annually  of  $i, 540,187. 2  Probably  the  only 
Colombian  to  write  a  defense  of  the  treaty  hi  the  newspapers  was 
Enrique  Cortez.  In  response  he  was  accused  of  being  in  the 
service  of  the  Colossus  of  the  North;  and  Ford  was  accused  of 
wanting  to  obtain  payment  of  the  claims  of  companies  in  which 
he  was  interested.3  The  press  advocated  with  apparent  unan- 
imity that  the  United  States  was  abundantly  able  and  would 
gladly  in  the  end  pay  a  much  larger  sum  than  that  stipulated. 
And  if  the  United  States  refused,  some  other  country  would 
avail  itself  of  the  golden  opportunity. 

1  Foreign  Relations,  1903,  213, 

2  Ibid.,  170. 
slbid.,  192. 


372  LEADING  AMERICAN  TREATIES 

With  regard  to  affairs  in  the  department  of  Panama,  President 
Marroquin  appointed  Obaldia  to  the  governorship,  because 
Obaldia  as  the  most  popular  man  in  Panama  supported  General 
Reyes  for  the  presidency  in  the  coming  elections.  Marroquin 
had  settled  on  Reyes  as  his  successor.  The  Senate  entertained  a 
resolution  in  which  the  appointment  was  considered  "as  a 
menace  to  the  safety  of  the  Republic. "  l  But  the  Minister  of 
Foreign  Relations  replied  that  in  case  of  insurrection  in  Panama 
the  United  States  would  be  bound  by  the  Treaty  of  1846  "to 
support  the  Government. "  2 

In  the  department  of  Panama  despondency  reigned.  Had  not 
haggling  and  intrigue  at  Bogota  robbed  the  Panamans  of  the 
canal  route  which  belonged  to  them  by  nature?  They  were 
willing  that  Bogota  should  reap  the  heavy  initial  payment  and 
the  annuities.  But  to  have  the  prospect  of  one  of  the  world's 
great  commercial  arteries  pass  from  them  with  all  that  this 
prospect  meant  in  growth  of  real  estate  values,  increased  trade, 
better  sanitation,  and  closer  contact  with  intellectual  centers  was 
enough  to  arouse  revolution.  The  situation  intensified  the 
recollection  of  the  unsatisfactory  relations  with  Colombia  in  the 
past.  How  Panama  had  declared  her  independence  from  Spain 
in  1821  and  upon  promises  from  New  Granada  had  allied  herself 
with  that  state;  and  the  promises  remained  unfulfilled.  How 
in  1830  Panama  had  resolved  to  ask  for  annexation  to  Great 
Britain  but  had  been  dissuaded  by  the  aged  patriot,  Simon 
Bolivar.  How  in  1840  she  had  dissolved  all  connection  with 
Colombia  and  had  established  her  own  constitution.  How  again 
upon  representations  from  Bogota  in  1842  she  united  with  New 
Granada  only  to  find  all  promises  fallacious.  Revolution  and 
oppression  continued  to  succeed  each  other  through  the  century 
until  the  refusal  at  Bogota  to  ratify  the  Hay-Herran  Treaty 
appeared  to  shatter  all  bonds  of  union.3 

The  Panama  patriots  had  organized  and  were  maintaining  a 
junta  hi  New  York  with  M.  Lindo  and  Dr.  Amador  at  the  head. 

1  Foreign  Relations,  1003,  193. 

JIbid.,  1903,  214. 

*  Sen.  Doc.,  474,  63  Cong.,  2  Sess.,  518. 


THE  PANAMA  CANAL  TREATIES  373 

They  articulated  well  with  W.  N.  Cromwell,  counsel  for  the  New 
Panama  Canal  Company,  and  with  Philippe  Bunau-Varilla,  an 
ubiquitous  Frenchman,  who  had  served  as  chief  engineer  on  the 
isthmus  for  the  original  Panama  Canal  Company.  Bunau- 
Varilla  gathered  snatches  of  information  m  Paris,  Panama,  New 
York,  and  Washington  and  wove  these  together  so  that  he  could 
estimate  accurately  how,  in  case  of  a  revolt  at  Panama,  the 
officials  of  the  Panama  railroad  would  act,  what  Colombia  would 
do,  and  what  action  the  United  States  would  take.  How  he  was 
able  to  watch  and  to  assist  in  the  coordination  of  the  various 
forces  Bunau-Varilla  has  told  in  his  book,  "  Panama,  the  Crea- 
tion, Destruction,  and  Resurrection." 

In  1885  Bunau-Varilla  had  witnessed  an  insurrection  in  Pan- 
ama. The  rebels  captured  the  terminal  cities  and  they  burned 
Colon  to  the  ground  under  the  eyes  of  Commander  Kane  of  the 
United  States  war  vessel  "Galena."  Rear  Admiral  Jouett 
ordered  a  court  of  inquiry  to  investigate  Kane's  action.  Jouett 
landed  troops  for  the  protection  of  communications  and  forbade 
the  Colombian  troops  from  Buenaventura  to  disembark.  Bunau- 
Varilla  assumed  that  the  United  States  would  take  similar  action 
under  similar  circumstances  again.  It  became  his  purpose  to 
promote  a  revolution  strong  enough  to  establish  independence.1 

Dr.  Amador  had  come  from  Panama  with  the  notion  that 
Secretary  Hay  would  extend  open  arms  to  receive  him,  would 
gladly  negotiate  a  treaty,  and  advance  liberal  funds.  Amador 
could  then  settle  down  as  the  minister  of  Panama  in  Washington 
and  watch  the  American  navy  protect  his  countrymen.  Instead, 
he  found  that  the  doors  to  the  office  of  the  Secretary  of  State 
would  not  open  for  him.  No  one  would  lend  him  or  his  cause 
money.  And  the  chances  for  an  independent  Panama  appeared 
hopeless. 

Bunau-Varilla  found  Amador  ready  to  grasp  any  straw  of  hope. 
Buanu-Varilla  submitted  to  him  a  program  of  military  opera- 
tions, a  draft  of  a  declaration  of  independence,  an  outline  of  a 
constitution,  and  a  flag  designed  by  Mme.  Bunau-Varilla.  He 
knew  well  that  all  of  these  projects  would  be  modified  but  he 
1  Bunau-Varilla,  Panama,  etc.,  285. 


374  LEADING  AMERICAN  TREATIES 

knew  also  that  the  people  of  Central  America  were  quicker  at 
modifying  than  at  creating.  A  secret  code  for  telegraphic 
communication  was  arranged.  Bunau-Varilla  announced  boldly 
that  as  the  best  qualified  man  he  would  assume  for  himself  the 
post  of  minister  for  the  new  republic  in  Washington.  Finally,  he 
agreed  to  lend  $100,000  from  his  own  private  funds  to  the  cause 
of  Panama.1  He  gave  Amador  until  November  3, 1903,  to  accom- 
plish the  independence  of  Panama.  Dr.  Amador  sailed  from  New 
York  on  October  20,  1903,  and  landed  at  Colon  seven  days  later. 

On  October  22  Bunau-Varilla  read  in  the  New  York  Evening 
Post  that  the  cruisers  "Marblehead"  and  "Mohican"  had  de- 
parted from  San  Francisco  for  a  cruise  in  southern  waters. 
On  October  25  he  read  in  the  New  York  Sun  that  the  cruiser 
"Dixie"  had  sailed  from  Philadelphia  under  sealed  orders,  carry- 
ing with  her  400  marines.  On  October  26  he  read  with  joy  a  news 
dispatch  that  General  Tovar  with  his  troops,  who  had  expected 
to  leave  Barranquilla  for  Panama  shortly,  might  not  do  so  until 
early  hi  November.  On  October  28  the  New  York  Times 
published  that  the  "Dixie"  had  arrived  at  Guantanamo  and  in 
case  of  revolution  in  Panama  would  be  sent  to  Colon.  Another 
news  dispatch  informed  him  that  the  cruiser  "Nashville"  lay  at 
Kingston,  five  hundred  miles  from  Colon.  His  friends  asked 
"What  is  going  to  happen  in  Panama?"  He  told  them  to  wait 
for  November  3. 

Bunau-Varilla  went  to  Washington  and  called  on  his  friend, 
Francis  B.  Loomis,  first  assistant  secretary  of  state.  He  re- 
viewed the  revolt  in  Panama  of  April,  1885,  the  destruction  of 
Colon,  and  the  part  taken  by  Commander  Kane.  "Tomorrow, " 
he  concluded,  "a  similar  disaster  will  be  imputed  to  President 
Roosevelt  for  not  having  taken  the  slightest  preventive  measure. 
He  will  not  have  sent  even  a  little  cruiser. "  On  the  next  day, 
October  30,  Loomis  assured  him:  "The  situation  is  really  fraught 
with  peril  for  the  town  of  Colon.  It  would  be  deplorable  if  the 
catastrophe  of  1885  were  to  be  renewed  today.  If  you  have  any 
news  please  communicate  it  to  me. "  2 

1  Bunau-Varilla,  Panama,  320-326. 
*Ibid.,  330. 


THE  PANAMA  CANAL  TREATIES  375 

Bunau-Varilla  had  no  news.  But  on  the  way  to  New  York  he 
stepped  off  at  Baltimore  and  cabled  Amador  that  in  two  and  one- 
half  days  a  United  States  war  vessel  would  appear  in  Colon.1 
The  New  York  Times  confirmed  his  prediction  the  next  morning, 
"Kingston,  Jamaica,  October  31.  The  American  cruiser  'Nash- 
ville' left  this  morning  with  sealed  orders.  Her  destination  is  be- 
lieved to  be  Colombia. "  The  "Nashville "  reached  Colon  on  the 
evening  of  November  2. 

On  the  morning  of  November  3  General  Tovar  arrived  quietly 
in  the  same  port  with  about  500  Colombian  soldiers.  He  and  his 
staff  took  the  train  for  Panama,  leaving  the  troops  to  come  later 
under  the  command  of  Colonel  Torres.  At  n  o'clock  General 
Huertas,  the  trusted  agent  of  Amador,  met  General  Tovar  at  the 
station  in  Panama  and  extended  every  courtesy.  General  Tovar 
asked  to  be  conducted  to  the  fortifications.  Huertas  expostu- 
lated that  they  stood  in  full  dress  uniform,  that  it  was  hot,  that 
the  hour  for  the  siesta  had  arrived,  and  that  after  they  had  rested 
and  gotten  into  their  fatigue  uniforms  he  would  be  glad  in  the 
cool  of  the  day  to  conduct  them  through  the  fortifications. 

Toward  the  middle  of  the  afternoon  General  Tovar  realized 
that  his  troops  had  not  arrived  at  the  appointed  hour  and  sus- 
pected a  plot.  He  ordered  that  the  local  troops  be  mustered, 
placed  at  his  disposal,  and  that  he  and  his  staff  be  conducted  to 
the  batteries  on  the  sea  wall.  General  Huertas  assented  readily. 
Heeding  an  urgent  "Do  it  now"  from  Amador,  he  ordered  out 
the  troops  with  rifles  loaded.  When  Tovar  and  his  staff 
approached  the  troops  leveled  their  rifles  at  them.  General 
Huertas  placed  his  own  commanding  officer  and  staff  under  arrest 
and  marched  them  off  to  police  headquarters.  In  order  not  to 
place  Governor  Obaldia  between  his  honor  and  his  duty,  he,  too, 
was  placed  under  formal  arrest. 

The  insurgents  expected  the  three  Colombian  gunboats  in  the 
harbor  to  join  them.  The  "Bogota,,"  Martinez  commanding, 
sent  word  that  if  the  generals  were  not  released  by  10  o'clock  that 
evening,  he  would  bombard  the  city.  He  did  fire  three  shells, 
one  of  which  killed  a  Chinese  coolie,  the  only  bloodshed  of  the 
'Bunau-Varilla,  Panama,  331. 


376  LEADING  AMERICAN  TREATIES 

revolution.  The  "Bogota"  steamed  away  and  the  other  two 
gunboats  hoisted  the  Panama  flag. 

At  Colon  Colonel  Torres  had  camped  with  the  troops  in  the 
street.  The  superintendent  of  the  railroad  had  refused  to 
provide  a  special  train  for  them  unless  the  governor  of  Panama 
should  so  order.  The  telephone  and  telegraph  to  Panama  failed 
to  work.  On  November  4  Torres  received  the  news  that 
General  Tovar  and  staff  had  been  imprisoned.  He  immediately 
threatened  to  seize  the  railroad  and  to  kill  every  American  in 
Colon.  The  railway  officials  appealed  to  Commander  Hubbard 
of  the  "Nashville"  for  protection  under  the  Treaty  of  1846;  and 
he  landed  promptly  fifty  men  and  directed  the  railway  superin- 
tendent to  refuse  transportation  to  the  troops  of  either  party. 
Thereupon,  Colonel  Torres  decided  not  to  march  to  Colon  or  to 
remain  and  subdue  the  insurgents  but  to  await  offers  that  would 
make  it  worth  while  for  him  to  leave.  The  Panamans  offered 
$8000  in  gold  if  he  would  go.  He  accepted.  On  November  5, 
1903,  he,  his  men,  and  their  wives  embarked  on  the  English 
steamer  "Orinoco. "  l  General  Tovar  and  his  staff  were  offered 
their  freedom  on  condition  they  would  leave  the  country. 
They  accepted  gladly. 

The  municipal  council  of  Panama  met  on  November  4,  1903, 
discussed  the  trend  of  events,  adopted  a  declaration  of  independ- 
ence, and  placed  an  executive  board  of  three  in  charge  of  the 
temporary  government.  The  provisional  government  notified 
the  American  vice  consul-general,  Felix  Ehrman,  of  their  action, 
and  he  reported  to  the  Secretary  of  State.  On  November  6,  Hay 
sent  a  message  authorizing  Ehrman,  if  he  felt  satisfied  that  a 
de  facto  government  had  been  established,  to  enter  into  relations 
with  it.  Hay  had  announced  his  intention  to  Colombia  to  do  so 
the  day  before.  On  November  13, 1903,  President  Roosevelt  re- 
ceived Bunau-Varilla  as  the  minister  of  Panama,  and  by  that  act 
Panama  became  a  member  of  the  society  of  nations.  Before  the 
end  of  the  month  France,  China,  Austria-Hungary,  and  Germany 
had  recognized  her  independence;  and  before  the  end  of  the  year 
Denmark,  Russia,  Sweden  and  Norway,  Belgium,  Nicaragua, 
1  Foreign  Relations,  1903,  268,  269. 


THE  PANAMA  CANAL  TREATIES  377 

Peru,  Cuba,  Great  Britain,  Italy,  Japan,  Costa  Rica,  and 
Switzerland  had  likewise  done  so.1 

Colombia  sent  her  most  distinguished  citizen,  General  Rafael 
Reyes,  to  conciliate  Panama;  but  Panama  would  not  permit  him 
to  land.  In  accordance  with  instructions  Reyes  proceeded  to  the 
United  States  and  arrived  in  Washington,  November  28,  1903. 
He  pleaded  that  in  refusing  to  ratify  the  Hay-Herran  Treaty  the 
Colombian  Congress  had  exercised  a  constitutional  right  similar 
to  that  of  the  American  Senate.  Second,  that  the  United  States 
had  been  premature  in  its  recognition  of  Panama.  Third,  that 
the  American  cruiser  had,  as  reputable  American  newspapers 
stated,  come  to  the  isthmus  for  the  express  purpose  of  assisting 
the  handful  of  revolutionists.  Fourth,  that  after  November  18, 
1903,  the  United  States  had  refused  Colombia  the  right  to  land 
troops  in  Panama  for  the  purpose  of  reestablishing  order.  Fifth, 
that  by  the  Treaty  of  1846  the  United  States  had  bound  itself  to 
guarantee  the  perfect  neutrality  of  the  isthmus  which  held  in  the 
case  of  domestic  insurrection  as  well  as  foreign  invasion.  Sixth, 
that  the  United  States  would  not  have  recognized  Panama  had 
not  that  state  afforded  the  best  route  for  a  canal.  And  seventh, 
that  by  the  Treaty  of  1846  each  party  had  agreed  that  in  case  of 
injury,  the  suffering  party  should  not  authorize  acts  of  reprisal 
or  declare  war  until  that  party  had  laid  before  the  other  a  state- 
ment of  grievances,  which  Reyes  was  now  doing.  He  closed  his 
appeal  with  the  request  that  all  claims  connected  with  the  events 
in  Panama  should  be  submitted  to  the  Hague  tribunal  for 
arbitration.2 

Secretary  Hay  replied  that  the  independence  of  Panama  was 
an  accomplished  fact,  recognized  by  the  governments  of  seven- 
teen powers,  which  could  leave  no  doubt  as  to  the  public  opinion 
of  the  world  on  the  propriety  of  recognizing  Panama.  The 
materials  in  "reputable  American  newspapers"  could  hardly 
furnish  an  adequate  source  for  diplomatic  argument  much  less 
for  grave  accusations.  Hay  denied  the  charge  that  the  American 
government  or  any  responsible  member  of  it  had  held  inter- 

1  Foreign  Relations,  231,  689;  Buanau-Varilla,  Panama,  349. 

2  Sen.  Doc.  474,  63  Cong.,  2  Sess.,  481. 


378  LEADING  AMERICAN  TREATIES 

course  official  or  unofficial  with  the  agents  of  revolution  in 
Colombia.  The  United  States  took  the  same  precaution  in 
November,  1903,  to  safeguard  the  transit  route  under  the  Treaty 
of  1846  that  it  did  in  1902  and  1901  and  on  numerous  previous 
occasions.  Colombia  understood  perfectly  what  the  interpreta- 
tion of  the  treaty  and  the  practice  of  the  United  States  had  been. 
Hay  noted  that  this  guaranty  of  neutrality  necessarily  followed 
the  isthmus,  hence  Panama  had  succeeded  to  the  protection. 
He  recognized  that  the  interests  of  the  United  States  had  been  at 
stake,  that  Panama  stood  for  those  interests  and  that  Colombia 
opposed  them.  "  Compelled  to  choose  between  these  two  alter- 
natives, the  government  of  the  United  States,  in  no  wise  respon- 
sible for  the  situation  that  had  arisen,  did  not  hesitate.  It 
recognized  the  independence  of  the  Republic  of  Panama,  and 
upon  its  judgment  and  action  in  the  emergency  the  powers  of  the 
world  have  set  the  seal  of  their  approval. "  The  question  of  the 
recognition  of  a  new  state  was  one  of  policy,  purely  political, 
one  which  nations  with  the  most  advanced  ideas  of  international 
arbitration  had  not  proposed  to  deal  with  by  that  process,  for  the 
question  did  not  fall  within  the  domain  of  judicial  decision.  But 
if  there  should  be  questions  of  a  legal  nature  between  Colombia 
and  Panama,  such  as  delimitation  of  boundaries,  apportionment 
of  pecuniary  liabilities,  and  the  government  of  Colombia  should 
so  desire,  the  United  States  would  gladly  exercise  its  good  offices 
in  bringing  such  questions  to  the  attention  of  Panama.1 

During  the  early  part  of  Reyes'  administration  as  President, 
1905  and  1906,  a  revolutionary  movement  in  favor  of  joining 
Panama  developed  in  the  rich  provinces  of  Cauca  on  the 
Atlantic,  Bolivar  on  the  Pacific,  and  Antioquia  between.  This 
danger  led  Reyes  to  urge  a  definite  settlement  of  questions  relat- 
ing to  the  use  of  the  canal  with  the  United  States  and  of  outstand- 
ing questions  with  Panama.2  The  Minister  for  Foreign  Affairs 
announced  that  Colombia  waived  the  demands  for  money  in- 
demnity and  arbitration.8 

1  Sen.  Doc.  474,  63  Cong.,  2  Sess.,  491. 
1  Ibid.,  112,  121,  122. 
1  Ibid.,  129. 


THE  PANAMA  CANAL  TREATIES  379 

On  his  trip  to  South  America  in  1906  Secretary  Root  met  at 
Cartagena,  September  24,  the  Minister  of  Foreign  Affairs, 
Vasquez  Cobo.  Cobo  proposed  that  a  new  treaty  be  negotiated 
to  replace  that  of  1846.  By  this  treaty  Colombia  should  have 
the  free  use  of  the  canal  for  her  public  vessels,  troops,  and  war 
material  even  in  time  of  war  with  another  country.  Colombian 
products  should  be  admitted  to  the  canal  zone  on  the  same  terms 
as  American  products.  Her  mails  should  enjoy  the  same  right  of 
free  passage  through  the  canal  as  American  mails.  Colombian 
products  passing  over  the  isthmian  railway  should  pay  only  a 
small  duty;  whereas  her  seasalt  conveyed  from  one  coast  to  the 
other  should  pay  freight  only.  Root  assented  to  these  proposi- 
tions with  the  understanding  that  Great  Britain  be  asked 
whether  she  had  any  objections  under  the  Hay-Pauncefote 
Treaty.  Cobo  then  asked  for  a  preferential  tariff  in  the  United 
States  on  Colombian  sugar  and  molasses.  Root  felt  that  this 
point  would  be  rejected  by  the  Senate  and  might  endanger  the 
whole  treaty.  Cobo  asked  that  the  United  States  interpose  its 
good  offices  between  Colombia  and  Panama  in  the  negotiation  of 
a  treaty  by  which  Panama  should  assume  her  proportion  of 
Colombia's  foreign  debt  as  it  stood  on  November  3,  1903, 
and  by  which  Panama  should  accord  special  customs  privi- 
leges to  Colombian  products.  Moreover,  Panama  should 
respect  the  boundary  to  be  fixed  in  the  treaty.  Root  as- 
sented. These  tripartite  treaties  were  to  be  negotiated  in 
Washington.1 

The  subsequent  negotiations  were  conducted  by  Cortes  for 
Colombia,  who  attempted  to  saddle  on  Panama  claims  for  the 
seizure  and  sale  of  the  Panama  railway  and  canal  works,  the  ex- 
penses in  the  arbitration  of  the  boundary  with  Costa  Rica,  a 
share  of  the  interior  debt  as  well  as  her  proportional  share  of  the 
foreign  debt.  Secretary  Root  conferred  with  Obaldia,  the 
Panama  representative,  and  obtained  from  Colombia  a  reduc- 
tion of  her  claims  to  $3,000,000;  the  payment  of  which  the  United 
States  agreed  to  guarantee.  Panama  agreed  to  give  up  all  claim 
to  the  shares  of  Colombia  in  the  New  Panama  Canal  Company. 
1Sen.  Doc.  474,  63  Cong.,  2  Sess.,  129,  131. 


380  LEADING  AMERICAN  TREATIES 

The  United  States  stipulated  with  Panama  that  the  annual 
payments  of  $250,000  should  begin  in  1908  instead  of  1913  as 
provided  by  the  Hay-Bunau-Varilla  Treaty;  and  Panama  agreed 
to  assign  ten  of  these  annual  payments,  1908  to  1917,  to  Colom- 
bia. Both  parties  agreed  that  neither  would  admit  to  its  nation- 
ality any  part  of  the  territory  of  the  other  which  might  break 
away  by  force.  Cortes  and  Obaldia  agreed,  with  Root's  media- 
tion, upon  the  boundary  except  for  the  region  of  Jurado  which 
should  be  submitted  to  arbitration.1 

The  treaty  between  the  United  States  and  Colombia  contained 
substantially  the  items  agreed  upon  in  the  conference  between 
Root  and  Cobo  in  Cartagena  in  September,  1906,  with  the  addi- 
tion that  ships  using  the  canal  might  in  distress  seek  refuge  in 
Colombian  ports  and  enjoy  exemption  from  anchorage  and  ton- 
nage dues.2  The  treaty  between  the  United  States  and  Panama 
contained  various  agreements  relating  to  boundaries  of  the 
canal  zone,  the  water  supply  of  the  city  of  Panama,  the  arbitra- 
tion of  disputes,  and  to  navigation  and  commerce.  All  three  of 
the  treaties  contained  the  provision  that  they  should  become 
operative  only  upon  the  simultaneous  exchange  of  ratifications 
in  Washington.3  The  treaties  bore  the  same  date,  January  9, 
1909. 

Panama  ratified  her  treaty  with  Colombia  on  January  30  and 
the  treaty  with  the  United  States  on  January  31,  1909.  The 
United  States  Senate  approved  the  treaty  with  Colombia  on  Feb- 
ruary 24  and  the  treaty  with  Panama  on  March  3,  1909.  In 
Colombia  President  Reyes  summoned  Congress  to  meet  on  Feb- 
ruary 22, 1909.  Congress  met  and  the  opponents  of  the  admin- 
istration charged  Reyes  with  strangling  the  freedom  of  speech 
and  of  the  press.  They  refused  to  allow  the  region  of  Jurado  to 
remain  a  subject  for  arbitration  and  they  asked  for  an  election  of 
a  new  Congress  to  pass  upon  the  treaties.  The  people  of  Bogota 
indulged  in  anti-Reyes  riots  and  wrecked  Cobo's  house,  with  the 
result  that  Reyes  declared  a  state  of  siege.  Under  the  circurn- 

lSen  474.  Doc.  63  Cong.,  2  Sess.,  320. 
'Ibid.,  318. 
» Ibid.,  315. 


THE  PANAMA  CANAL  TREATIES  381 

stances  Reyes  could  do  and  did  nothing  to  obtain  the  ratification 
of  the  treaties.1 

Undaunted  by  various  vicissitudes  at  home  and  in  Washington 
Colombia  renewed  her  requests  for  an  arbitration  treaty  during 
1910  and  191 1.2  Secretary  Knox  refused  to  permit  the  arbitra- 
tion of  the  political  acts  of  the  United  States  and  suggested  that 
Colombia  might  remove  all  existing  disputes  by  ratifying  the 
dormant  tripartite  treaties.  Colombia  refused.  Knox  proposed 
that  Colombia  grant  an  option  on  the  Atrato  route  and  receive 
a  consideration  of  $10,000,000  from  the  United  States.  Colom- 
bia would  not  listen  and  decided  to  wait  for  the  terms  which  the 
Wilson  administration  might  concede.3 

The  Colombian  minister  renewed  the  request  for  arbitration  as 
soon  as  Bryan  had  been  installed  as  Secretary  of  State.4  In 
reply  Bryan  asked  for  a  postponement  of  the  question  of  arbitra- 
tion in  the  hope  that  direct  negotiations  might  accomplish  the 
desired  result.  On  September  29,  1913,  he  instructed  the  Amer- 
ican minister  at  Bogota,  Thaddeus  Thomson,  to  offer  $20,000,000 
in  full  settlement  of  all  claims  that  Colombia  might  have  upon 
the  United  States  and  upon  Panama.5 

In  return,  Thomson  forwarded  to  Bryan  a  draft  of  a  treaty 
drawn  by  Dr.  Francisco  Urrutia,  Minister  of  Foreign  Affairs,  by 
which  the  United  States  conceded  to  Colombia  all  of  the  rights 
granted  by  Root  in  his  conference  with  Cobo  in  Cartagena, 
September  24, 1906.  By  the  Urrutia  draft  Colombia  assumed  no 
obligations  whatsoever.  Moreover,  the  United  States  should  pay 
an  indemnity  of  $50,000,000  and  express  regrets  for  whatever  had 
occurred  on  the  isthmus  in  1903.  Thomson  expressed  a  personal 
plea  for  acceptance  of  the  word  "regrets."  6  Colombia  claimed 
the  completely  free  use  of  the  canal  for  her  war  vessels,  troops, 
and  munitions  and  for  her  coastwise  trade.  The  boundary  with 
Panama  should  be  fixed  at  the  seventy-ninth  longitude  and  the 

1Sen.  Doc.  474,  63  Cong.,  2  Sess.,  221. 
8  Foreign  Relations,  1913,  284. 

3  Ibid.,  288,  297. 

4  Ibid.,  309. 
6  Ibid.,  321. 
•Ibid.,  324. 


382  LEADING  AMERICAN  TREATIES 

United  States  agreed  to  use  its  good  offices  for  the  establishment 
of  diplomatic  relations  and  the  adjustment  of  pecuniary  ques- 
tions between  Panama  and  Colombia. 

Three  significant  changes  appeared  in  the  final  draft.  The 
boundary  with  Panama  was  left  as  provided  in  the  tripartite 
treaties  with  the  stipulation  that  Colombia  should  have  the 
region  of  Jurado.  The  amount  of  the  indemnity  was  reduced  to 
$25,000,000,  "gold,  United  States  money."  And  the  expression 
of  regret  was  made  to  read,  "The  Government  of  the  United 
States  of  America,  wishing  to  put  at  rest  all  controversies  and 
differences  with  the  Republic  of  Colombia  arising  out  of  the 
events  from  which  the  present  situation  on  the  Isthmus  of  Pan- 
ama resulted,  expresses,  in  its  own  name  and  in  the  name  of  the 
people  of  the  United  States,  sincere  regret  that  anything  should 
have  accurred  to  interrupt  or  to  mar  the  relations  of  cordial 
friendship  that  had  so  long  subsisted  between  the  two  nations."  * 
The  document  carried  the  date  of  April  6,  1914.  President 
Wilson  submitted  it  to  the  Senate  on  June  16,  1914.  That  body 
took  no  action  during  the  succeeding  six  years. 

Why  should  the  United  States  pay  $25,000,000?  Had  any 
right  of  Colombia  under  international  law  been  violated?  John 
Hay,  Elihu  Root,  and  Philander  C.  Knox  maintained  that  no 
such  right  had  been  affected  in  the  least.  Nowhere  in  the 
diplomatic  correspondence  available  do  the  representatives  of 
Colombia  show  that  such  a  right  had  been  infringed  upon.  Wil- 
liam Jennings  Bryan  did  not  specify  such  a  legal  right.  He 
did  mention  that  Colombia  had  suffered  losses.  It  may 
have  been  that  the  Wilson  administration  felt  that  although 
the  attitude  of  the  Roosevelt  administration  had  been  strictly 
and  legally  correct  a  moral  advantage  might  be  gained  by 
handing  over  $25,000,000  as  a  present  to  Colombia  in  order  to 
pacify  her. 

But  why  should  the  United  States  express  "sincere  regret?" 

Could  the  United  States  under  the  principles  of  international  law 

or  under  a  reasonable  interpretation  of  the  Treaty  of  1846  have 

acted  otherwise  than  it  did?    Or  could  the  United  States  under 

» Sen.  Ex.  Doc.  H.,  63  Cong.,  2  Sess.,  2. 


THE  PANAMA  CANAL  TREATIES  383 

a  high  conception  of  international  morality  and  the  progress  of 
civilization  have  acted  otherwise  than  it  did? 

After  the  negotiations  had  been  lying  fallow  for  seven  years, 
President  Harding  recommended  to  the  Senate,  March  9,  1921, 
a  favorable  consideration  of  the  treaty  with  revisions.  The  revi- 
sions made  in  the  committee  on  foreign  relations  struck  out 
Article  I,  which  provided  for  the  expression  of  sincere  regret  by 
the  government  and  people  of  the  United  States.  The  right  of 
Colombia  to  use  the  canal  for  the  transportation  of  troops, 
materials  and  ships  of  war,  without  paying  any  charges  to  the 
United  States  was  made  to  apply  only  when  Colombia  remained 
at  peace.  As  originally  drafted  this  right  applied  "even  in  case 
of  war  between  Colombia  and  another  country,"  which  would 
have  made  the  United  States  an  ally  of  Colombia.  With  these 
two  revisions  and  a  few  minor  ones  the  Senate  advised,  April  20, 
1921,  the  ratification  of  the  treaty.  The  United  States  thereby 
seized  the  opportunity  of  giving  Colombia  $25,000,000  in  order 
to  remove  all  distrust  and  to  bring  about  friendly  relations  be- 
tween Colombia  and  Panama. 

In  order  to  complete  this  chapter  a  digest  of  the  Hay-Bunau- 
Varilla  Treaty  should  be  included.  Bunau-Varilla  had  been 
received  as  the  minister  of  Panama  by  President  Roosevelt  on 
November  13,  1903.  Two  days  later  Secretary  Hay  sent  him  a 
draft  of  a  treaty  corresponding  almost  identically  with  the  Hay- 
Herran  Treaty.  To  make  certain  of  obtaining  the  prompt  ap- 
proval by  the  Senate  Bunau-Varilla  deemed  it  wise  to  make  some 
additional  concessions  to  the  United  States  and  to  obtain 
adequate  protection  for  Panama.  He  recast  the  document.  At 
a  luncheon  on  November  18,  1903,  Hay  discussed  the  merits  of 
the  two  drafts  with  the  most  influential  Republican  senators. 
That  afternoon  Hay  asked  Bunau-Varilla  to  call  at  his  house  at 
six  o'clock.  Bunau-Varilla  complied.  "  I  have  requested  you, " 
said  Hay,  "  to  be  so  good  as  to  keep  this  appointment  in  order  to 
sign,  if  it  is  agreeable  to  Your  Excellency,  the  Treaty  which  will 
permit  the  construction  of  the  interoceanic  canal. " 

"I  am  at  the  orders  of  Your  Excellency,"  replied  Bunau- 
Varilla,  "to  sign  either  of  the  two  projects  which,  in  Your 


384  LEADING  AMERICAN  TREATIES 

Excellency's  judgment,  appears  best  adapted  to  the  realization 
of  that  grand  work." 

"The  one  that  appears  best  adapted  to  that  end,"  said  Hay, 
"not  only  to  myself,  but  also  to  the  Senators,  who  will  have  to 
defend  it  in  the  Senate,  is  the  one  Your  Excellency  has  pre- 
pared."1 

Hay  made  one  change  in  the  terminology  of  Article  II.  The 
phrase  "leases  in  perpetuity"  yielded  to  the  phrase  "grants  to 
the  United  States  in  perpetuity  the  use,  occupation  and  control. " 

The  treaty  contained  twenty-six  articles.  The  preamble 
stated  that  the  treaty  had  for  its  purpose  to  carry  into  effect  the 
provisions  of  the  Spooner  act,  June  29,  1902.  By  Article  I  the 
United  States  guaranteed  the  independence  of  Panama. 

By  Article  II  Panama  granted  in  perpetuity  "  the  use,  oc- 
cupation and  control  of  a  zone"  ten  miles  wide,  including  three 
miles  out  to  sea  at  either  end;  and  likewise  any  other  lands  and 
waters  outside  of  the  zone  which  might  "be  necessary  and  con- 
venient for  the  construction,  maintenance,  operation,  sanitation 
and  protection"  of  the  canal.  Four  small  islands  in  the  bay  of 
Panama  were  added.  But  this  grant  should  not  include  any  part 
of  the  cities  of  Panama  and  Colon. 

By  Article  III  Panama  granted  all  the  rights,  power,  and 
authority  within  the  zone  "which  the  United  States  would 
possess  and  exercise  if  it  were  the  sovereign  of  the  territory." 

By  Article  IV  Panama  granted  in  perpetuity  the  use  of  her 
"rivers,  streams,  lakes,  and  other  bodies  of  water"  for  the  con- 
struction, maintenance,  operation,  sanitation  and  protection  of 
the  canal. 

By  Article  V  Panama  granted  in  perpetuity  a  monopoly  of 
all  ocean  to  ocean  rail  and  canal  routes  across  her  territory. 

Article  VI  preserved  the  private  property  rights  within  the 
canal  zone;  but  these  might  be  expropriated  by  the  United  States 
on  payment  of  just  compensation  to  be  fixed  by  the  joint  com- 
mission created  by  Article  XV. 

Article  VII  authorized  the  United  States  to  acquire  by  the 
right  of  eminent  domain  lands,  buildings,  and  water  rights, 
1  Bunau-Varilla,  Panama,  etc.,  376. 


THE  PANAMA  CANAL  TREATIES  385 

including  disposition  of  sewage  and  distribution  of  water,  in 
Colon,  Panama,  and  territory  adjacent  for  the  maintenance, 
protection,  and  sanitation  of  the  canal.  And  the  United  States 
could  collect  water  and  sewerage  rates  sufficient  to  pay  interest 
and  the  amortization  of  the  principal  of  the  cost  within  fifty 
years,  after  which  time  the  sewer  and  water  works  should  revert 
to  those  cities.  Article  VII  provided  further  that  if  in  the 
judgment  of  the  United  States  the  cities  of  Colon  and  Panama 
did  not  comply  with  the  sanitary  ordinances  and  the  republic  of 
Panama  should  not  be  able  to  maintain  order  the  United  States 
might  enforce  the  ordinances  in  the  cities  mentioned  and  main- 
tain order  in  the  republic. 

By  Article  VIII  Panama  relinquished  all  claim  on  the  property 
of  the  Panama  railroad  and  French  canal  companies. 

By  Article  IX  Panama  agreed  that  Colon  and  Panama  should 
be  free  ports  for  all  time  and  the  United  States  agreed  that  no 
duties  should  be  collected  except  the  tolls  and  charges  for  the  use 
of  the  canal. 

By  Article  X  Panama  agreed  to  impose  no  taxes  in  the  canal 
zone  nor  any  taxes  on  the  works  or  personnel  connected  with  the 
canal  although  these  might  be  located  in  Panama. 

By  Article  XI  the  official  dispatches  of  Panama  should  be 
carried  over  the  telephone  and  telegraph  lines  on  the  zone  at  the 
same  rates  as  those  paid  by  the  United  States.  By  Article  XII 
Panama  permitted  the  free  ingress  and  egress  of  workmen  and 
their  families  connected  with  the  canal.  Article  XIII  per- 
mitted the  free  importation  into  Panama  of  all  materials  for 
building,  maintaining,  and  protecting  the  canal. 

Upon  the  exchange  of  ratifications,  Article  XIV  provided  that 
the  United  States  should  pay  Panama  $10,000,000  and  beginning 
nine  years  thereafter,  which  turned  out  to  be  1913,  $250,000 
annually. 

Article  XVI  specified  that  an  extradition  convention  should 
be  negotiated. 

By  Article  XVII  vessels  bound  to  or  from  the  canal,  when 
in  distress,  might  seek  refuge  in  any  port  of  Panama  without  pay- 
ing anchorage  or  tonnage  dues. 


386  LEADING  AMERICAN  TREATIES 

Article  XVIII  recognized  the  Hay-Paunceforte  Treaty. 

Article  XIX  gave  Panama  the  free  use  at  all  times  of  the 
canal  for  transporting  her  vessels,  troops,  and  munitions  of  war. 

By  Article  XX  Panama  agreed  to  cancel  or  modify  in 
accordance  with  the  present  treaty  any  existing  treaty  which 
might  impose  conflicting  obligations. 

By  Article  XXI  Panama  gave  her  pledge  that  all  the  conces- 
sions granted  to  the  United  States  stood  free  from  any  anterior 
debt  or  lien  of  any  kind. 

By  Article  XXII  Panama  renounced  all  participation  in 
the  future  earnings  of  the  canal  to  which  she  might  be  entitled 
by  the  Wyse  contract,  owned  by  the  New  Panama  Canal  Com- 
pany, or  by  the  concessions  to  the  Panama  Railroad  Company. 

By  Article  XXIII  Panama  permitted  the  United  States  to  for- 
tify the  canal. 

By  Article  XXIV  Panama  agreed  that  no  change  in  her 
government,  laws,  or  treaties,  or  even  her  absorption  in  another 
state  should  affect  the  rights  granted  to  the  United  States. 

By  Article  XXV  Panama  agreed  to  lease  or  sell  coaling  stations 
necessary  for  the  protection  of  the  canal  to  the  United  States. 

Article  XXVI  provided  for  the  exchange  of  ratifications  hi 
Washington  at  the  earliest  date  possible.1 

John  Hay  and  Philippe  Bunau-Varilla  signed  the  treaty  on 
November  18,  1903,  two  years  to  a  day  after  the  signing  of  the 
Hay-Paunceforte  Treaty.  The  Senate  advised  ratification  on 
February  23,  1904.  President  Roosevelt  ratified  on  February 
25.  On  the  next  day  the  ratifications  were  exchanged  and  the 
treaty  proclaimed. 

On  August  15,  1914,  the  canal  was  opened  to  commercial 
traffic.  And  today  the  prospects  are  that  in  order  to  accommo- 
date future  intercourse  the  canal  will  have  to  be  enlarged  or 
another  canal  will  need  to  be  constructed. 

'Malby,  Treaties,  H.:  1349. 


THE  PANAMA  CANAL  TREATIES  387 

BIBLIOGRAPHY 

AMADOR,  MANUEL. — The  New  Republic  of  Panama,  Independent,  Nov.  26, 
1903,  volume  5:  2782. 

ARIAS,  HARMODIO. — The  Panama  Canal,  a  Study  in  International  Law  and 
Diplomacy.  London,  1911. 

BENNETT,  IRA  ELBERT. — History  of  the  Panama  Canal.    Washington,  1915. 

BUNAU-VARILLA,  PHILIPPE. — Panama,  The  Creation,  Destruction,  and 
Resurrection.  London,  1913.  La  Question  de  Panama,  Nouvelle  Revue, 
April  15,  1904;  volume  27:  433. 

CHAMBERLAIN,  LEANDER  T. — A  Chapter  of  National  Dishonor.  New 
York,  1912. 

Colombia,  Ministerio  de  Relaciones  Exteriores.  Documentos  Diplomaticos 
sobre  el  Canal  y  la  Rebelion  del  Istmo  de  Panama.  Bogota,  1904. 

EDER,  PHANOR  J. — The  United  States  and  the  Panama    Canal.     Outlook, 
Oct.  21,  1911;  volume  99:  433. 

FREEHOFF  JOSEPH  C. — America  and  the  Canal  Title.     New  York,  1016. 

House  Document,  680,  62  Congress,  2nd  Session.     Washington,  1912. 

JOHNSON,  EMORY  R. — Four  Centuries  of  the  Panama  Canal.     New  York, 
1917. 

JOHNSON,   WILLIS   FLETCHER. — America's  Foreign   Relations.    2    volumes, 
New  York,  1916. 

KNOX,  P.  C. — Summary  of  Negotiations  with  Colombia,  1911  to  1913.  For- 
eign Relations,  1913,  297.  Washington,  1920. 

MEYER,  H.  H.  B. — List  of  references  on  the  Panama  Canal.  Washington, 
1919. 

OPPENHEIM,  L.  F.  L. — The  Panama  Canal  Conflict  between  Great  Britain 
and  the  United  States.  London,  1913. 

REYES,  RAFAEL. — The  Two  Americas.     New  York,   1914. 

ROOSEVELT,  THEODORE. — An  Autobiography.    New  York,  1913. 
How  the  United  States  acquired  the  right  to  dig  the  Panama  Canal,  Out- 
look, Oct.   7,   1911,  volume  09:  314. 

The  Panama  Blackmail  Treaty,  Metropolitan,  Feb.  1915,  volume  41:  8,  69. 
Message  of  December  7,  1903,  Foreign  Relations,  1903,  XXXII. 
Message  of  January  4,  1904,  Foreign  Relations,  1003,  260. 

ROOT,  ELTHU. — The  Ethics  of  the  Panama  Question.  Address  before  the 
Union  League  Club,  Chicago,  Feb.  22,  1004. 

Senate  Document  143,  58  Congress,  2nd  Session.    Washington,  1005. 

Senate  Document  191,  62  Congress,  2nd  Session.    Washington,  1912. 

Senate  Document,  456,  63  Congress,  2nd  Session.    Washington,  1914. 

Senate  Docummt474,  63  Congress,  2nd  Session.    Washington,  1914. 

SULLIVAN,  G.  H.  AND  CROMWELL,  W.  N. — Compilation  of  Executive  Docu- 
ments and  Diplomatic  Correspondence  relative  to  a  Trans-Isthmian  Canal. 
New  York,  1903. 

THAYER,  W.  R. — The  Life  of  John  Hay.    2  volumes.    Boston,  1915. 

TRAVIS,  IRA  D. — The  History  of  the  Clayton-Bulwer  Treaty,  Ann  Arbor,  1900. 

United  States,  Isthmian  Canal  Commission,  Report,  1899-1901.  Wash- 
ington, 1904. 

WILLIAMS,  MARY  W. — Anglo-American  Isthmian  Diplomacy.  London, 
1916. 


INDEX 


Adams,  Charles  Francis,  74,  280, 
286,  287,  298,  302 

Adams,  Charles  Francis,  Jr.,  277, 
286 

Adams,  Henry,  97 

Adams,  John,  29,  30,  33,  63,  64, 
68,  81,  137;  on  the  United  States 
in  the  balance  of  power,  29;  on 
the  fisheries,  35,  39;  on  a  tariff,  47; 
resignation  as  minister  to  Great 
Britain,  49 

Adams,  John  Quincy,  118,  122,  126, 
173,  221,  263,  315;  on  the  power 
to  acquire  Louisiana,  101;  on 
the  fisheries,  139;  on  the  slave 
trade,  190 

Adams,  William,  119 

Adet,  63 

"Alabama,"  279,  305;  escape,  282; 
English  attitude  on,  283 

"Alabama"  claims,  293 

Alaska   boundary   arbitration,    272 

Alaska  Commercial  Company,  260 

Alaska,  first  act  of  Congress  on,  260 

Alaska  Purchase,  250;  provisions 
of,  259 

Allegiance  in  ceded  territory  of 
Spain,  1898,  343 

Alexander,  Czar,  118 

"Alexandra,"  284 

Alliance  with  France,  possible, 
1803,  85 

Alliance  with  France,  n,  17,  60,  69; 
concessions  asked  by  American 
commissioners,  13;  terms  of,  17; 
and  French  Directory,  63 

Almonte,  Senor,  194 

Alvarez  y  Sanches,  claim  of,  343 

Alverstone,  Baron,  273 

Amador,  Dr.,  372 

Ambrister,  Robert  C.,  161 

Amelia  Island,  113,  157 

American  Atlantic  and  Pacific  Ship 
Canal  Company,  348 

American  Revolution,  a  world  ques- 
tion, 29 

Ames,  Fisher,  59 

Angouleme,  Due  d',  314 


Animum  revertendi,  267,  269 

Anna,  Santa,  200,  204,  210;  reply 
to  Scott's  request  for  an  armis- 
tice, 21 1 ;  resignation  of,  213 

Appalachian   Mountains,   33,   76 

Arbitration  of  fur  seals'  dispute,  263 

Arbitration  of  North  Atlantic  Fish- 
eries, 142 

Arbitration  of  the  occupation  of 
Manila,  335 

Arbitration,  provision  hi  the  Treaty 
of  Guadalupe  Hidalgo,  219 

Arbitrators  of  "Alabama"  claims, 
298 

Arbuthnot,  161 

Arcos,  Duke  de,  344 

Argyll,  Duke  of,  287 

Armed  neutrality,  1780,  27,  29 

Armistice,  1783,  41 

Armstrong,  General,  155 

Aroostook  War,  175,  178 

Ashburton,  Lord,  108,  175 

Astor,  J.  J.,  252 

Atlantic  cable,  255 

Atocha,  Colonel,  200;  mission  to 
Mexico,  206 

Attorney  General  v.  Sillim  et  a/.,  285 

Augmentation  of  crew,  301 

Bagot,  Charles,  139 

Baltic  trade,  i 

Bancroft,  George,  203,  312,  351 

Bankhead,  British  minister  to  Mex- 
ico, 210 

Barclay,  Thomas,  129 

Baring  Brothers,  288 

Barlow,  Joel,  74 

Baronof,  251 

Barren,  Commodore,  109 

Bathurst,  Lord,  123,  125,  139 

Bayard,  James  A.,  118 

Bayard,  Thomas  F.,  260 

Bayonne  Decree,  115 

Bays,  ten  mile  rule,  145 

Beaumarchais,  Caron  de,  4;  sup- 
plies for  Americans,  5;  payment 
of  his  claims,  20 

Beaupr6,  A.  M.,  368 


339 


39° 


INDEX 


Belligerency   of   Confederates,    290 

Belligerency,  321 

Bentinck,  G.  W.  P.,  276 

Benton,  Thomas  H.,  206 

Bering  Sea,  closed  sea,  261 

Bering,  Vitus,  250 

Berkeley,  Admiral,  109 

Berlin  Decree,  106,  107 

Bermudas,  in  the  Treaty  of  Alli- 
ance, 1778,  18 

Bernard,  Montague,  296,  208 

Beust,  Count,  307 

Biddle,  Charles,  348 

Biddle,  Commodore,  227 

Bismarck,  307 

Blackstone,  266 

Blaine,  James  G.,  262,  355 

Blanc,  Louis,  277 

Blanca,  Florida,  n 

Blanco,  General,  328 

Blockade,  120 

Boer  War,  284 

Bonaparte,  Joseph,  68 

Bonvouloir's  report,  1775,  3 

Boundaries  of  the  United  States, 
1782,  34,  36 

Boundary  from  the  Lake  of  the 
Woods  to  the  Rockies,  147 

Bout  well,  George  S.,  260 

Breckinridge,  John,  100 

British  claims,  1871,  310 

British  Honduras,  349 

British  treaty  with  Japan,  1859,  247 

Bryan,  W.  J.,  381 

Buena  Vista,  Countess  of,  342 

Bulloch,  James  D.,  277,  278;  and 
the  escape  of  the  "Alabama,"  282 

Bunau-Varilla,    Phillipe,    373,    383 

Burr,  Aaron,  56 

Buchanan,  James,  195,   220 

Cadore,  Due  de,  113 
Calhoun,  John  C.,  117 
California,  198,  199,  213;  character 

of  Mexican  rule  in,  202 
Cambon,  Jules,  331 
Canada,  2,  32,  122 
Canal  tolls,  357 
Canning,  George,  in,  314 
Canovas,  326 
Carleton,  Sir  Guy,  48,  56 
Carmarthen,    Marquis   of,    47;   on 

American  constitution,  49 
Carmichael,  William,  76 
Caroline  affair,  175,  184 
Cartel  ships,  308 


Carter,  James  C.,  264 

Casey,  Admiral,  363 

Castlereagh,  Lord,  118,  124,  125, 
140;  project  of  slave  trade  con- 
vention, 1818,  100 

Catherine,  Czarina,  27 

Causes  for  British  sympathy  with 
Confederates,  278 

Cevallos,  152 

Charles  III,  22,  30 

Charles  IV,  86 

Chatfield,  Frederick,  349 

"Chesapeake,"  109,  no,  117 

China  Telegraph  Company,  341 

Choate,  Rufus,  74 

Choiseul,  2 

Citizenship  conferred  by  treaty,  93 

Claiborne,  83,  94,  156 

Claims,  1898,  340 

Claims  against  Denmark,  74 

Claims  against  France  up  to  1800, 

7i 
Claims  against  Great  Britain  up  to 

1796,  74 

Claims  against  Naples,  74 
Claims  against  Spain,  74 
Claims  against  The  Netherlands,  74 
Claims  at  Geneva,  299 
Claims  under  Louisiana  Purchase,  95 
Clarendon-Motley  Convention,  1870, 

131 

Clay,  Henry,  117,  127,  348 
Clayton-Bulwer  Treaty,  349;  sum- 
mary of,  353 
Clifford,  Nathan,  221 
Clinton,  DeWitt,  74 
Cobden,  Richard,   277,   284 
Cockburn,  Sir  Alexander,  298,  303, 

3°4 

Collins,  Major  P.  M.,  255 
Colombia,    360   363;    demands   for 

more  money,  363,  365 
Colombian    press    on    Hay-Herran 

Treaty,  371 
Colombia's  consent  to  sale  of  rights 

held    by    New    Panama    Canal 

Company,  368 
Colombia  -  Panama      negotiations, 

1008,  380 
Commerce     in     Napoleonic     wars, 

American,  51 
"Commerce,"  66 
Commerce  with  France  suspended, 

67 
Commercial  restrictions,  American, 

339 


INDEX 


391 


Commissioning  a  vessel,  300,  304 

"Competitor,"  324 

Concha  draft  of  a  treaty,  361 

Conner,  Commodore,  204,  205 

Consular  convention  of  1788,  60 

Consular  jurisdiction  in  Japan,  248 

Consuls,    provisions    for,    1778,    17 

Continuous  voyage,  105 

Contraband,  i,  59;  in  1778,  16;  in 
Jay's  Treaty,  55 

Convention  of  1800,  effect  of,  71; 
instructions  to  American  com- 
missioners, 68;  terms  of,  69 

Convention  of  1802  with  Spain,  154 

Convention  of  1818,  provisions,  136 

Convention  of  June  17,  1857,  with 
Japan,  242 

Conway,  30 

Copyrights  and  patents,  343 

Cornwallis'  defeat,  29 

"Corwin,"  260 

Cortez,  347 

Cortez,  Enrique,  371 

"Creole,"  175,  191;  arbitrated,  192 

Crimean  War,  255 

Crittenden,  John  J.,  185 

Cromwell,  W.  N.,  373 

Cuba,  315;  trade  with,  318 

Cuba  Submarine  Telegraph  Com- 
pany, 342 

Cuban  army  disbanded,  344 

Cuban  debt,  333 

Cuban  revolution,  319 

Cuevas,  195 

Gushing,  Caleb,  292,  298,  325 

Cost  of  pursuit  of  Confederate 
cruisers,  306 

Cotton,  1794,  54 

"Cotton  is  King,"   278 

Cotton  loan  bonds,  310 

Coudert,  F.  R.,  264 

Courcel,  Alphonse  de,  264 

Court  of  Claims  and  spoliation 
claims,  72 

Courts  for  "Alabama"  claimants, 
307,  3°9 

Dallas,  George  M.,  126 
D'Aranda,  Count,  22 
Darien  Company,  348 
Dartmoor  prison,  129 
Davie,  William  R.,  68 
Davis,  Cushman  K.,  332 
Davis,  J.  C.  Bancroft,  293,  298 
Dawson,  Judge,  261 
Day,  William  R.,  332 


Days   of   grace   for   merchants   to 

leave  country,  16 
Deane,  Silas,  5,  6;  recompense  for 

services,  20 

Debts  of  Americans,  1783,  37 
Debts,  pre-revolutionary,  paid,  38, 

53 

Declaration  of  Paris,    1856,   131 

Deep  sea  fisheries,  137 

Denmark,  27 

Delivery  of  Alaska,  259 

Detroit  River,   navigation  of,    183 

Disposition  of  amount  under  Gen- 
eva award,  308, 

Disputed  territory  fund,  183 

Disraeli,  301 

Dominion  over  Bering  Sea,   264 

Drago,  Luis,  146 

Droit  d'aubaine,  15,  70 

Droit  detraction,  15,  70 

Dudley,  T.  H.,  283 

Due  diligence,  297,  304,  307 

Durfree,  184 

Dutch  in  Japan,  226 

Dutch  merchant  marine,  i 

East  Florida,  85 

East  India  trade,  i,  133;  in  Jay's 
Treaty,  55 

Elgin,  Lord,  247 

Elgin-Marcy  reciprocity  treaty,  142 

Ellsworth,  Oliver,  68 

Emancipation     proclamation,     287 

Embargo  act,  in,  112,  113 

Enemy  ships,  enemy  goods,  16,  70 

Enemy  trade  in  Convention  of 
1800,  70 

Erskine,  D.  M.,  116 

Erving,  George  W.,  159 

"Essex,"  105 

Evarts,  W.  M.,  285,  298 

Everett,  Edward,  74 

Exculpated  cruisers,  309 

Exequaturs  of  French  consuls  re- 
voked, 67 

"Experiment,"  66 

Exports  to  Great  Britain,  1784,  46 

Extradition,  188  ff.,  in  Jay's  Treaty, 

55 

Exterritoriality  of  belligerent  war 
vessels,  304 

Extra-territorial  jurisdiction  in  Ja- 
pan, 240,  245 

Family  compact,  1761,  3 
Fauchet,  Citizen,  62 


392 


INDEX 


Ferdinand  VII,  157,  314 

Field,  Cyrus,  256 

Filibustering  expeditions,  157,  322 

Fish,  Hamilton,  291 

Fisheries,    northeastern,    127,    128 

Fitzherbert,  39 

Fitzpatrick,  Sir  Charles,  142 

Flag  shall  cover  property,  168 

Florida,  2,  116,  151 

"Florida,"  278,  281,  300,  305 

Florida  Blanca,  Count  de,  22,  23, 

24,  27 
Florida  land  grants,  166,  168,  169 

J73 

Florida  Purchase,  provisions  of, 
167 

Ford,  J.  T,  371 

Foreign  enlistment  act,  279,  280, 
288,  300 

Forster,  W.  E.,  284 

Forsyth,  John,   169,  178,   185,  317 

Foster,  John  W.,  264 

Foster,  A.  J.,  115 

Fox,  C.  J.,  19,  30,  45 

France,  i,  2;  consular  jurisdiction 
over  prizes,  61;  efforts  to  limit 
the  United  States,  33;  and  Jay's 
Treaty,  55,  63;  loans  to  the 
United  States,  4,  8,  9;  motives 
for  assisting  Americans,  3 

Franco-Prussian  War,  288 

Frankfort,  28 

Franklin,  Benjamin,  4,  6,  20,  22, 
•23;  memorandum  on  demands 
for  peace,  31;  on  debts,  40;  on 
Grenville's  commission,  31;  on 
loyalists,  38;  on  Oswald's  com- 
mission, 31;  socially,  10;  violation 
of  his  instructions,  42;  work  at 
Passy,  9 

Frederick  the  Great,  27 

Freedom  of  the  sea,  267,  270 

Free  ports  in  France,  1778,  17 

Free  ships,  free  goods,  i,  26,  27, 
28,  64,  70,  78 

Frelinghuysen,  F.  T.,  356 

Friars,  340 

Frye,  William  P.,  332 

Fur  Seal's  arbitration,  263 

Fur  seals,  property  in,  266,  270; 
treaty  of  1911,  271 

Fur  trade,  1787,  48;  prior  to  Jay's 
Treaty,  123 

Gallatin,  Albert,  58,  74,  in,  114, 
118,  126,  128;  on  Convention  of 


1818,  140;  on  acquisition  of 
territory,  97;  on  British  sailors  on 
American  ships,  103 

Gambier,  Lord,  119,  122 

Gardoqui,  Diego  de,  77 

Garland,  A.  H.,  262 

General  trend  of  the  coast,  272 

Genfit,  Citizen,  60,  61;  issuance  of 
letters  of  marque  and  reprisal, 
61;  Jefferson  on  extradition  of, 
62 

Geneva  award,  304,  306;  disposition 
of  amount  of,  307 

George  III,  25,  45,  116;  enabling 
act  to  alienate  territory,  32 

Gerard,  12,  13 

Germany  and  the  Hay-Herran 
Treaty,  369 

Gerry,  Elbridge,  63,  64 

Gettysburg,  276,  287 

Ghent,  119 

Gibraltar,  2,  25,  35 

Gladstone,  W.  E.,  276 

Glynn,  Commander,  227 

Godoy,  77 

Gold  in  California,  257 

Gomez,  Maximo,  319 

"Gone  to  Halifax,"  140 

Goulburn,  Henry,  119,  122 

Gram,  Gregers,  264 

Grand  Banks,  31 

Grant,  Ulysses  S.,  213,  296 

Gray,  George,  142,  332 

Great  Britain,  and  Hay-Herran 
Treaty,  369,  armed  neutrality  of 
1780,  27;  declaration  of  war  on 
the  Dutch,  1780,  28;  refusal  to 
enter  the  proposed  congress  of 
Vienna,  1782,  30;  war  with 
France,  1793,  51 

"Great  Eastern,"  256 

Great  Lakes,  naval  forces  on,  124 

Great  War,  284 

Greek  Church  in  Alaska,  274 

Grenville,  Thomas,  30;  preliminary 
agreement  with  Vergennes,  31 

Grenville,  Lord,  52,  104 

Grey  and  Ripon,  Earl  de,  296 

Grimaldi,  Marquis  de,  22 

Griswold,  Gaylord,  09 

Griswold,  Roger,  99 

Gwin,  William  M.,  257 

Guadalupe  Hidalgo,  215;  treaty  of, 
194;  provisions  of  treaty,  216 

Guam,  332 

Gulf  of  Mexico,  25 


INDEX 


393 


Hakodate,  237 

Halifax  commission,  1877,  311 

Hamilton,  Alexander,  52;  excise 
tax,  37;  on  alliance  with  France, 
60;  on  Jay's  Treaty,  56 

Hammond,  George,  49,  50;  protest 
to  Genii's  issuance  of  letters  of 
marque  and  reprisal,  61 

Hammond,  J.  H.,  278 

Hannen,  Lord,  263 

Hanse  Towns,  108 

Harlan,  John  M.,  263 

Harris,  Townsend,  241,  247 

Harris  Treaty  with  Japan,  1858,  243 

Harrison,  William  H.,  176 

Hartley,  David,  23,  41;  proposal 
of  peace  to  Franklin,  30 

Hawks,  F.  L.,  237 

Hawkesbury,  Lord,  104 

Hay,  John,  272,  356,  377 

Hay-Bunau-Varilla  Treaty,  385 

Hay-Herran  Treaty,  366;  amend- 
ments proposed  by  Colombia, 
369;  debate  in  Bogota  on,  370 

Hay-Pauncefote   Treaty,    356,    357 

Herbert,  Michael  H.,  272 

Herran,  Tomas,  366 

Herrera,  President,  195 

Hoar,  E.  R.,  296 

Holmes,  John,  129 

Holy  Alliance,  165,  315 

"Horsa,"  323 

House  of  Representatives,  appro- 
priation for  Alaska,  259;  share  in 
treaty  making,  58 

Hudson  Bay,  a  closed  sea,  141 

Hudson    Bay   Company,    141,    252 

Huertas,  General,  375 

Hull,  F.  S.,  279 

Humboldt,    Alexander   von,    348 

Humphreys,  Captain,  109 

Iberville,  86 

Immovable   property,    1898,   340 

Imperialism,  344 

Imports  from  Great  Britain,  1784, 
46 

Impressment,  51,  53,  64,  103,  121, 
122;  in  Webster- Ashburton  ne- 
gotiations, 192 

Inculpated  cruisers,  309 

Indemnity  for  slaves,  1813,   129 

India,  2 

Indirect  damages,   289,  301 

"Industry,"  65 

Institute  of  International  Law,  307 


Instructions  to  American  com- 
mission broken,  1782,  36 

Instructions  to  American  commis- 
sioners, Ghent,  120,  121 

Instructions  to  British  commis- 
sioners, Ghent,  120 

Instructions  to  Franklin,  Deane, 
and  Lee,  10 

Instructions  to  John  Slidell,  198,  200 

Instructions  to  Livingstone  and 
Monroe,  85,  152 

Instructions  to  Perry,  228 

Instructions  to  Rush  and  Gallatin, 
1818,  140 

Instructions  to  Trist,  206,  207 

Insurgency,  recognition  of,  321 

Insurrection  in  Panama,  1885,  373 

International  law,  denned  by  James 
C.  Carter,  266;  by  Sir  John 
Russell,  268 

Intervention    for    self-defense,    187 

Isle  of  Pines,  345 

Isthmian    canal    commission,    360 

Itajuba,  Viscount,  298 

Jackson,  Andrew,  157,  161;  at 
New  Orleans,  118 

Jackson,  Francis  J.,  116 

Jacmel,  siege  of,  81 

Japan,  convention  of  1857,  242; 
efforts  to  open,  226;  English, 
Russian  and  Dutch  treaties  with, 
240;  leases  to  foreigners,  243; 
1550  to  1620,  open,  226;  Perry's 
treaty  with,  225;  reasons  for 
entering  into  treaty  with  Perry, 

239 

Japanese  diplomatic  mission,  1860, 
248 

"Jaseur,"  139 

Jaudenes,  78 

Jay,  John,  104;  burned  in  effigy,  56; 
defense  of  treaty  of  1794,  57;  final 
commission  to  Oswald;  32,  34; 
minister  to  Madrid,  25;  mission 
to  Great  Britain,  52;  opinion  on 
Mississippi,  26;  sent  Vaughan 
on  secret  mission,  33 

Jay's  Treaty,  1794,  proclaimed,  57; 
provisions,  53;  and  France,  55 

Jefferson,  Thomas,  6,  20,  in,  316; 
on  alliance  with  France,  60;  on 
boundaries  of  Louisiana,  93;  on 
execution  of  Treaty  of  Paris,  49; 
on  extradition  of  Gen£t,  62;  on 
issuance  of  letters  of  marque 


394 


INDEX 


and  reprisal  by  Genet,  61;  on 
Louisiana,  83;  on  treaty  power,  08 

Jeffries,  N.  L.,  261 

Jette,  Sir  Louis,  273 

Johnson-Clarendon  Convention,  291 

Joint  occupation  of  Oregon,  148,  149 

Jones,  John  Paul,  19,  27 

Joseph  II,  30 

Judicial  proceedings  in  ceded  terri- 
tory, 1898,  343 

"Juno,"  66 

Kalb,  Baron  de,  2 

Kane,  Commander,  373 

Kaunitz,  Prince,  30 

"Kearsarge,"  283 

Kent,  Chancellor,  285 

King  of  The  Netherlands,  award  of, 

182 

King,  Rufus,  104 
Knox,  Philander  C.,  381 

Lairds,  287;  iron-dads,  283,  288 

Lake  Michigan,  navigation  of,  312 

Lake  of  the  Woods,  127 

Lammasch,  H.,  142 

Land,  rights  of  English  to  hold  in 
America,  54 

Lansing,  Robert,  264 

"Laurel,"  300 

Laurens,  Henry,  28;  on  the  slaves 
taken  by  the  British,  41 

Laussat,  86,  94 

Lax  man,  lieutenant,  226 

Leclerc,  82 

Lee,  Arthur,  6,  7;  charges  against 
Deane  and  Beaumarchais,  20; 
minister  to  Madrid,  22;  prohibi- 
tion of  export  duties,  14 

Lee,  Fitzhugh,  327 

Lee,  William,  28 

"Leopard,"  109 

Lesseps,  Ferdinand  de,  359 

Letter  of  credence,  September  30, 
1776,  7 

Letters  of  marque  and  reprisal,  16 

Lew  Chew  Islands,  234 

Lewis,  George  C.,  284 

Liberty  to  inshore  fisheries,  137, 
140,  141 

Licenses  to  trade  with  the  enemy, 
107,  108 

Lincoln,  Levi,  97 

Lindo,  M.,  372 

Livingstone,  Brockholst,  56 

Livingstone,  Edward,  74 


Livingstone,  Robert  R.,  43,  83,  88; 
on  importance  of  Louisiana,  95; 
on  West  Florida,  92 

Lodge,  Henry  Cabot,  273 

Lohmann,  F.  de  Savornin,  142 

Lome,  Dupuy  de,  327 

London,  articles  of  peace,  1801,  79 

Loomis,  Francis  B.,  374 

Louis  XVI,  2,  77;  good  offices  with 
Barbary  States,  15;  Vergennes, 
report  to,  2 

Louisiana,  an  expense  to  Spain,  78; 
boundaries  described  in  orders  to 
Marshal  Victor,  86;  boundary, 
91;  eastern  boundary,  153;  ne- 
gotiations for,  88;  terms  of 
treaty,  90 

Lowndes,  William,  171 

Loyalists,  37,  40,  47,  50,  51;  Frank- 
lin on,  38;  paid,  38,  39 

Luzerne,  43 

Lytton  Bulwer,  Henry,  352 

MacDonald,  Sir  John  A.,  296 
Mackenzie,  Alexander  S.,   204 
McKinley,  William,  327 
McLeod,  Alexander,    175,  185,  186 
Macon  Bill  No.  2,  113 
Madawaska  settlement,  181 
Madison,  James,   58,   74,  86,    in, 

114,  117,  131,  316 
Magoon,  Charles  E.,  341,  342,  343 
"Maine,"  327,  328,  338 
Mancini,  M.,  367 
Manila,  330 

Manila   Railway   Company,   341 
Marbois,  Bart>6,  33,  87 
Marcy,  W.  L.,  318 
Mare  clausum,  Bering  Sea,   261 
"Maria,"  66 
Maria  Theresa,  30 
Marque  and  reprisal,  and  G£net,  61 
Marroquin,  President,  367 
Marshall,  John,  63 
"Martha,"  65 
Mason  and  Slidell,  286 
Mason,  Stevens  T.,  56 
Matsusaki,  237 
Mediation,    1898,  329;   by  Russia, 

1812,  us 

Mercantile  system,  32 
Merchant  marine  act  of  1920,  132 
Merchant  marine  of  New  England, 

46 

Mexico,  unpaid  claims  against,  197 
Michcltorena,  199 


INDEX 


395 


Middleton,  Henry,  253 
Milan  Decree,  1807,  109 
Military  situation,  1777,  9 
Milne,  Sir  David,  139 
Miranda  expedition,  168 
Mississippi,   2,  26,  33,  34,  37,  53, 

76,  86;  navigation  of,   127,   141 
Mobile,  25 
Monroe,  James,  52,  104,  131,  316; 

minister  to  France,  62;  recall,  63; 

minister  extraordinary  to  France, 

84 

Monroe  Doctrine,  316,  348 
Moore,  John  Bassett,  332 
Morgan,  John  I.,  263 
Morris,    Gouverneur,   49;   minister 

to  France,  60 
Mosquito  Indians,  349 
Most    favored    nation    clause,    14, 

239;   for  privateers,   prizes,   and 

consuls,  1800,  69,  70 
Motley,  John  Lothrop,  291 

Nagasaki,  226 

Napoleon,    29,    68,    87,    107,    112, 

115,  131;  ambitions  for  colonial 

empire,  79;  and  Louverture,  82; 

on   boundary   of   Louisiana,   91; 

on  Convention  of  1800,   70;  on 

transfer  of  Louisiana,  96 
Napoleon  III,  286 
"Nashville,"  375 
Naval  stations  in  Cuba,  345 
Navigation  act,  British,  i 
Navy,  creation  of  department  of,  67 
Negotiations  of  Treaty   of  Wash- 
ington, 296 
Nesselrode,  253,  264 
Netherlands,  i,  26;  American  treaty 

with,  1782,  29 
Neufville,  M.  de,  28 
Neutrality,  299,  321;  law,  18,  159; 

of  Panama,  364,  378;  of  canal,  357 
Neutrality    proclamation,    18,    61; 

British,  289 
Neuville,  M.  de,  166 
New  Amsterdam,  i 
New  Brunswick,  duty  on  lumber, 

312 
New    Orleans,    Jefferson    on,    84; 

port  of  deposit,  78 
New  Panama  Canal  Company,  359, 

Colombia's  consent    to    sale    of 

rights  of,  368 
Nicaragua  canal  route,  358 
Nicholson,  Joseph,  99 


Nitobe,  Inazo,  247 
"No.  290,"  279 
Noailles,  Marquis  de,  20 
Non-importation  act,  u,  112 
North,  Lord,  20;  30,  45 
Northcote,  Sir  Stafford,  296 
Northeastern   boundary,    129,   177; 

description  of,  181;  Sparks'  map, 

180 
North    Atlantic    fisheries,    33,    34, 

120,  123,  127,  128,  136,  200,  311; 

Adams  on,  39;  arbitration  of,  142; 

"right"  and  "liberty,"  41 
Northwest  Territory,  31 
Nova  Scotia,  35 

Obaldia,  372 

Obligations  of  Cuba,  344 

Official  language  of  treaties  of  1778, 

17 

Ogilvy,  130 

Olivart,  Marquis  de,  322 

Olney,  Richard,  321 

Olyphant,  D.  W.  C.,  expedition  to 
Japan,  226 

Onis,  Don  Luis  de,  157 

"Open  door"  policy,  339 

Opium,  Harris'  Treaty  on,  244 

Opium  War,  242 

Orders  in  council,  53,  106 

Ordinance  of  1787,  101 

"Oregon,"  356 

Oregon,  American  claims  to,  148; 
British  claims  to,  147;  claims,  292 

"Oreto,"  278 

Ostend  manifesto,  317 

Oswald,  Richard,  31,  35,  his  com- 
mission, 32,  34 

Ourup,  255 

Pacheco,  210 

Pacific  coast,  British  claims  to,  122 
Pakenham,  General,  120,  131 
Palmer,  Sir  Roundell,  298 
Palma,  Tomas  Estrada,  318 
Palmerston,  Lord,  185,  276,  284,  351 
Panama  Canal  treaties,  347 
Panama,  causes  for  revolt  of,  372 
Panama  Congress,  1826,  348 
Panama  Railroad,  348 
Panama  revolt,  1903,  375 
Panama  route,  359 
Panin,  Count,  27 
Paper  blockade,  106 
Paredes,  General,  200 
Parma,  Duke  of,  79 


396 


INDEX 


Passports  for  vessels,  1778,  17 

Paul  I,  ukase,  1799,  250 

Pauncefote,  Sir  Julian,  263,  341 

Peace  of  Paris,  1763,  2 

Pena  y  Pena,  Manuel  de  la,  214,  222 

Pensacola,  25 

Percival,  Spencer,   107,  108 

Perdido,  93,  153 

Perry,  Commodore,  M.  C.  213; 
command  of  East  India  squadron, 
228;  dinner  to  Japanese,  237; 
peaceful  character  of  his  mission, 
229;  reception  by  Japanese,  233; 
treaty  with  Japan,  225 

Perry's   Treaty,    provisions,    238 

Petroff,  Ivan,  264 

Petropavlosk,  bombardment  of,  255 

Phelps,  Edward  J.,  264 

Philippines,  334 

Phillimore,  Joseph,  107 

Phillimore,  Robert,  285 

Pichon,  M.,  81 

Pickering,  Timothy,  100 

Picquet,  Admiral,  salute  to  Amer- 
ican flag,  19 

Pike,  Zebulon  M.,  168 

Pinckney,  C.  C.,  63,  151 

Pinckney,  Thomas,  49;  treaty  with 
Spain,  1795,  78 

Pinkney,  William,  112,  114,  116 

Piracy,  55,  64;  slave  trade  made,  190 

Pitt,  tiie  younger,  45 

Pizarro,  Don  Jos6,  163 

Platt  amendment,  345 

Policy  of  United  States  toward 
Cuba,  317 

Polk,  James  K.,  194,  221 

Pollock,  Sir  Frederick,  285 

Pontiatine,  Admiral,  234 

Porcupine,  311 

Porter,  General  Horace,  333 

Porter,  Peter  B.,  117 

Portugal,  2 

Posts  in  Northwest,  47,  50,  51, 
52, 53;  British  jurisdiction  over,  48 

Praya  Bay,  282 

Prevost,  James  C.,  312 

Prevost,  Sir  George,  120 

Pribilof  Islands,  260,  271 

Prim,  General,  292 

"Prince  Alfred,"  280 

Prioleau,  Charles  K.,  285 
Prisoners  of  war,  1898,  337;  under 
Treaty  of  Guadalupe  Hidalgo,  219 
Privateering,  55 


Privateers,  Gen&t  and,  61 
Prizes  and  French  consuls,  61 
Prizes,  French,  in  ports  of  United 

States,  1 6 

Prizes,  Jay's  Treaty  on,  55 
Prizes    taken    in    quasi    war    with 

France,  68 
"Prometheus,"  354 
Property  in  fur  seals,  266,  270 
Protests  of  Colombia,  1903,  377 
Provisions  as  contraband,  1794,  55 
Puros,  222 
Public  ship  of  war,  300 

Quasi  war  with  France,  1798,  67; 

not  war  legally,  68 
Quebec  act,  31 
Queretaro,  214 

Rambouillet,  decree  of,  115 

Randolph,  Edmund,  52;  resigna- 
tion, 62 

Randolph,  John,  99 

Rayneval,  33 

Rebellion,    in    Canada,    1837,    184 

Rebus  sic  stantibus,  355 

Reciprocity  with  Cuba,  319 

Recognition  of  Panama,  376 

Reconcentrado  policy,  320 

Reed,  Thomas  B.,  74 

Refuge  of  vessels  in  stress,  16 

Regret  for  escape  of "  Alabama,"  295 

Regret  of  United  States  to  Colom- 
bia, 382 

Reid,  Whitelaw,  332 

Religious  worship  under  Harris' 
Treaty,  245 

Repatriation  of  prisoners  of  war,  339 

Restrictions  on  warfare  in  Treaty 
of  Guadalupe  Hidalgo,  219 

Revolution,  American,  commerce 
as  an  argument  in,  7 

Reyes,  Rafael,  377 

Riparian  rights  on  Mississippi,  77 

Rives,  William  C.,  74,  352 

Robespierre,  on  Gendt,  62 

Robinson,  F.  J.,  131 

Rockingham,  Lord,  8,  30 

Roderique  Hortalez  and  Co.,  4 

Rodney,  Czsar,  99 

Roebuck,  286,  287 

Rosa,  Luis  de  la,  214 

Rose,  George,  in 

Rose,  John,  292 

Ross,  General,  120 

Root,  Elihu,  273 


INDEX 


397 


Root-Cobo  Conference,  379 
Rule  of  war  of    1756,  105 
Russell,  Earl,  276,  284,  287 
Russell,  Sir  Charles,  264 
Rush,  Richard,  139,  314 
Rush-Bagot  Convention,  1817,  133 
Russia,  27,  28;  attitude  in  1862,  286 
Russian  American  Company,   250, 

257 

Sackville-West,  Sir  Lionel,  260 
Sagasta,  326 
St.  Albans'  raid,'  310 
St.  Clair  Flats  canal,  312 
St.  Clair  River,  navigation  of,  183 
St.  Croix  River,  50,  53 
St.  Cyr,  93 
St.  Eustatius,  26 

St.  John  River,  navigation  of,  182 
St.  Lawrence,  navigation  of,   132, 

183,  311 
St.  Marks,  161 
Salisbury,  Lord,  263 
San  Domingo,  79 
San  Juan  boundary,  149,  312 
Saratoga,  victory  of,  n 
Schenck,  R.  C.,  296 
Sclopis,  Count  Frederick,   298,  on 

indirect  claims,  302 
Scott,  Michael,  118 
Scott,  Sir  William,  105 
Scott,  Winfield,   149,   178,   222;  at 

Vera  Cruz,  204;  and  Trist,  208, 

209;  request  for  an  armistice,  211 
Sea  power,  2 

Seals,  exclusive  protection  of,  263 
Second  Hague  Conference,  307 
Secret  Committee  on  Foreign  Cor- 
respondence, 5 
Secret  diplomacy,  56,  296 
Seizure     of     American     ships     by 

British,  paid  for,  53 
Self  defense,  limitations  on  national, 

187 

Semmes,  Captain,  282 
Senate,  expunged  second  article  in 

Convention  of  1800,  70 
Senegal,   2 

Sequestration  of  debts,  54 
Seven  Years'  War,  i 
Severance   of   diplomatic    relations 

with  France,  64,  74 
Sevier,  Senator,  221 
Seward,  William  H.,  258,  289 
Seward's  folly,  259 
Sheffield,     Lord,     on     trade     with 

America,  45 


Shelburne,  Lord,  30,  31;  resignation 

45 

"  Shenandoah,"  300,  305 

Sherman,  John,  328 

Shimoda,  237 

Ships,  trade  in,  284 

Shipwrecked,  238;  treaty  of  1778 
on,  1 6 

Short,  William,  76 

Sixty  mile  limit  for  protection  of 
fur  seals,  271 

Slave  trade,  130,  189 

Slidell,  John,  196;  not  received  in 
Mexico,  199 

South  American  republics,  170 

Sovereignty  of  Colombia,  365 

Spain,  i,  25,  76,  77;  ally  of  France, 
26;  attitude  toward  Louisiana 
purchase,  96;  fear  of  America  in 
the  Revolution,  u;  invited  to 
join  alliance  of  1778,  18;  loan  to 
America,  4,  n;  offer  of  mediation, 
!779>  2S;  seizure  of  Russian 
ships,  1779,  27 

Spanish  rule  in  Cuba,  318 

Sparks,  Jared,  180 

Spoliation  claims,  64,  65,  68,  69; 
action  of  Congress,  72;  appro- 
priations for,  73;  fifth  amend- 
ment as  basis,  74;  in  Convention 
of  1800,  71;  President  Taft  on, 

73 

Spooner  act,  362 

"Springbok,"  310 

Squier,  E.  G.,  350 

Staempfli,  Jacques,  298,  303 

Stamp  Act  Congress,  2 

Stanley,  Lord,  289 

"Statira,"  66 

Status  quo  ante  bellum,  129;  in 
1898,  332 

Stephen,  James,  106,  108 

Stevens,  Edward,  81 

Stikine,  311 

Stirling,  Sir  James,  240 

Stoeckl,  Edward  de,  257 

Stormont,  Lord,  8 

Story,  Joseph,  285 

Strachey,  Henry,  35,  36;  on  Amer- 
ican debts,  37 

Strong  Island,  338 

Subsidy   for   fishing   industry,    138 

Sullivan,  Governor,  113 

Sulu  Islands,  338 

Simmer,  Charles,  74,  258,  291 

"Sumter,"  281 


398 


INDEX 


Sutler,  John  A.,  253 
Sweden,  27 

Taft,  William  H.,  341,  on  spolia- 
tion claims,  73 
Talleyrand,    64,    68,    87,    152;    on 

boundary  of  Louisiana,  91 
Tariff,  47;  in  Harris'  Treaty,  246; 

in  the  States,  48 
Taylor,  John,  100 
Taylor,  Zachary,  106,  201,  204 
Tazewell,  Henry,  56 
Tenterden,  Lord,  298 
Terceira,  281 
Texas,  194;  claim  to  the  Rio  Grande, 

198 

Thompson,  Sir  John,  263 
Thomson,  Thaddeus,  381 
Thornton,  Edward,  209,  292 
"Three  Friends,"  322,  324 
Tigre  Island,  349 
Tom  Cringle's  Log,  118 
Tonnage  duties,  132 
Torres,  Colonel,  376 
Toussaint  Louverture,  80 
Tovar,  General,  375 
Tracy,  Uriah,  100 
Trade  in  Spanish  America,  314 
Trade  with  British  America,  46 
Treaty  with   Colombia,    1921,  383 
Treaty  of  Alliance,  19;  opinion  of 

Hamilton  and  Jefferson  on,   18; 

proposed  by  royal  council,  12 
Treaty  of  Aranjuez,  24 
Treaty  of   Commerce,    1778,    14 
Treaty  with  Netherlands,  1782,  29 
Treaty  of  Paris,  1763,  2,  86 
Treaty  of  Paris,  1783,  22,  45 
Treaty  of  Paris,   1856,   28 
Treaty  between  Russia  and  Great 

Britain,  1825,  254 
Treaty  with  Spain,  1795,  78 
Treaty  of  St.  Ildefonso,  79 
Treaty  of  Washington,  276 
Treaty  of  1674,  i,  28 
Treaty  of  1795,  326 
Treaty  of  1824,  with  Russia,  253 
Treaty  of  1846,  with  New  Granada, 

$63,  376 

Tripartite  treaties,  379 
Trist,  Nicholas  P.,   206,  208,   213, 

214,  215,  223 
Troops    to    protect    neutrality    of 

Panama,  364 

Truce  for  United  States,  1782,  23 
Tupper,  Charles  H.,  264 


Turgot,  3 
Turkey,  27 
Turner,  George,  273 
Tuyl,  Baron,  316 
Two  Sicilies,  27 
Tyler,  John,  104 

Ukase  of  1799,  250;  of  1821,  253, 

263;  of  1841,  254 

Urrutia  draft  of  a  treaty,  1913,  38 
Uti  possidetis,  119,  126,  129 

Van  Berckel,  28 

Vanderbilt's  company,  350 

Van  Ness,  C.  I.,  129 

Vans  Murray,  William,  68 

Vaughn,  Benjamin,  33 

"Venus,"  65 

Veragua,  claim  of  Duke  of,  337 

Vergennes,  M.  de,  2,  23,  24,  25, 
30,  137;  loans  to  America,  4;  news 
of  Saratoga,  n;  on  violation  of 
instructions  by  American  com- 
mission, 42;  private  audience  with 
Franklin,  Deane,  and  Lee,  8; 
report  on  England,  2;  urged  recall 
of  Adams,  29;  why  France  made 
alliance  with  America,  10 

Verona,  Congress  of,  314 

Vicksburg,  276,  287 

Victor,  Marshal,  86 

Vienna,  proposed  congress  of,  1782, 
30 

"Virginius,"  326 

Visconti  Venosta,  Emilio,  264 

Visit  and  search,  16,  62 

Vives,  General,  170 

Waite,  Morrison  R.,  298 

"War  hawks,"  117 

War  of  1812,  causes,  103,  ff. 

War  with  Mexico,  causes,  196 

War  with  Spain,  330 

Washington,  George,  i,  2,  49,  52, 

76;  neutrality  proclamation,  18; 

on  requests  of  House  and  Senate 

to  furnish  documents,  58 
Webster,  Daniel,  74,  175,  176 
Webster-Ashburton   Treaty,    175 
Welland  Canal,  311 
Wellesley,  Lord,  114 
Wellington,  Duke  of,  127 
West    Florida,    85,    121,    153,   156; 

in  Louisiana  Purchase,  92 
Western  Union  Telegraph  Company, 

256 


INDEX  399 

West  India  trade,  54,  57,  132  Williams,  Reuel,  Senator,  179 

Weyler,  General,  320  Williams,  S.  Wells,  227,  231 

Wheaton,  Henry,  74  Woodford,  Stewart  L.,  328 

Whiskey  rebellion,  37,  76  Wyse,  Lucien  N.  B.,  359 

Whitworth,  Lord,  87 

Wilberforce,  William,  108  X.  Y.  Z.  affair,  63 

Wilkinson,  General,  94 

"William,"  106  Yorktown,  29 

William  I,  Emperor,  312  Yrujo,  Marquis  Casa  de,  86,  154 

Williams,  George  H.,  296  Yukon,  311 


UNIVERSITY  OF  CALIFORNIA  LIBRARY,  LOS  ANGELES 

COLLEGE  LIBRARY 

This  book  is  due  ou  the  last  date  stamped  below. 


Book  Slip- -Scries  42riO 


UCLA-College  Library 

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